CASE OF MANIC v. LITHUANIA
(Application no. 46600/11)
13 January 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Manic v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Jon Fridrik Kjřlbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 25 November 2014,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 46600/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan and Romanian national, Mr Eugeniu Manic (“the applicant”), on 12 July 2011.
2. The applicant, who had been granted legal aid, was represented by Mr G. Virtopeanu, a lawyer practising in London. The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė.
3. The applicant alleged the passivity of the public authorities in enforcing a judicial decision defining his rights of contact with his child. He alleged, in particular, that the actions by the Lithuanian authorities and courts in respect of his right to have contact with his son were in breach of Article 8 of the Convention.
4. On 18 April 2012 the application was communicated to the Government. The Governments of Moldova and Romania, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lives in London.
6. The applicant met V.T., a Lithuanian citizen, in the United Kingdom in 2005. They lived together in London.
7. On 18 September 2007 a son, A.M., was born to them. A.M. is a Lithuanian citizen.
8. In March 2008 V.T. went with the child to visit her family in Lithuania. After a month, the father went to Lithuania to fetch them. They all returned to the United Kingdom. In June the mother and their son went back to Lithuania for the summer. In July the mother wrote to the applicant stating that their relationship was over. She went to the United Kingdom shortly afterwards to collect their son’s belongings and returned to Lithuania, where she remained with the boy. On 17 July 2008 V.T. registered her and her son’s permanent residence at her parents’ address in Kuktiškės village, Utena district in Lithuania.
A. Court proceedings in Lithuania regarding the child’s return to the United Kingdom
9. The applicant claimed that his son had been abducted and held in Lithuania without his consent. He initiated proceedings before the Vilnius Regional Court, asking that the child be returned to the United Kingdom, which was his son’s usual permanent place of residence.
10. By a decision of 6 March 2009, the Vilnius Regional Court dismissed the applicant’s request. The applicant, V.T., two of her lawyers and representatives of the Lithuanian child care authorities were present at the hearing. The child care specialist asked the court to resolve the issue of the child’s return to his country of birth as it saw fit. This notwithstanding, the authorities observed that the child had good living conditions in Lithuania and was growing up in a secure environment among loving people.
11. The court acknowledged that since his birth the boy’s parents had taken care of him together and that consequently his permanent place of residence was the United Kingdom. Both of the parents had custody rights in respect of the boy. The Vilnius Regional Court also dismissed V.T.’s allegation that the applicant had agreed that the child could settle permanently in Lithuania. Moreover, V.T. had no legal basis on which to decide to change the child’s permanent place of residence on her own. Her refusal to return the child to the country of his birth after the holidays in summer 2008 could not be recognised as being justified.
12. The Vilnius Regional Court nevertheless ruled that the child should stay in Lithuania. In setting out its reasons, the court held that before arriving in Lithuania the child had lived in London for some seven months. It was therefore his mother, who did not go out to work, who had predominantly taken care of him during that time. Moreover, his living conditions in the United Kingdom were worse than those in Lithuania. In particular, the boy and his parents had lived in London in one small room, with construction work going on close by. By contrast, in Lithuania the child lived at V.T.’s parents’ house where, according to a child care representative, the boy felt happy and was spry, active, communicative and loved. The court also observed that the boy’s mother had taken care of him the entire time since birth, that they were very close and that the boy had never been left with a nanny or any other person. Furthermore, even though there was no evidence that the applicant had ever behaved improperly in front of the child, or that he had abused alcohol, used drugs or resorted to violence, the applicant had not demonstrated that he had the skills to take care of such a small child. Accordingly, the boy’s separation from the mother and transfer to the father would not be in the child’s interests. It followed that the child could be returned to the United Kingdom only with the mother. Given that the mother could not survive financially in London on her own and that the applicant refused to guarantee having enough money to maintain the child’s mother or to guarantee living conditions for her if she were to come back with the child to the United Kingdom, the applicant’s request that the child be returned to the United Kingdom had to be denied.
B. Court proceedings in England regarding the child’s permanent place of residence and the applicant’s contact rights
13. The applicant then started new court proceedings in the High Court of Justice in England and Wales (hereinafter - “the HCJ”). In summer 2009 that court appointed a guardian ad litem for A.M.
14. In January 2010 the boy’s guardian recommended that he remain in the care of his mother. The guardian also recommended to the HCJ that there be a period of contact between the father and his son, so that they could rebuild their relationship.
During these proceedings, the applicant appeared in person, and V.T. gave evidence in person; she was also represented by her lawyers.
15. On 28 April 2010 the HCJ ruled that the child should permanently reside in Lithuania with his mother. The option for V.T. to come to the United Kingdom and take up a job there was not in the child’s best interests, given that the child would be placed in a nursery and would have two parents who were emotionally distant. Moreover, V.T. did not wish to live in England, even if she were to be supported by the applicant. Having acknowledged that the father had a genuine and serious interest in his son, the court held that the “central underlying problem” thus related to the promotion and preservation of a good relationship between the two of them.
16. The HCJ accepted that the applicant felt vulnerable in Lithuania but rejected his allegations about concerted attempts by the Lithuanian authorities to act against him. That notwithstanding, the HCJ also held:
“99. (...) it seems to me that in Lithuania [the applicant] will have very real difficulties in engaging in the contact in an appropriate way because of the pressures he will have in Lithuania. (...) I see real advantage in the contact being here [in London] so that the child gets to know his father in the father’s own environment.”
17. The HCJ thus considered that the correct place for their contact would be England. Furthermore, the preferred timing was “clearly as soon as possible”.
18. Accordingly, the child’s mother was to come to the United Kingdom and spend up to six weeks there, during which time a regime of contact between the father and the child would take place. Afterwards the mother was free to return to Lithuania with the child and to live there permanently. The HCJ also “wished to make it abundantly clear” to both parents that “albeit the issues relating to the welfare of children could change with circumstances, it was going to take a very significant change for there to be any re-visiting of the overarching plan described above”.
19. Once the child had settled permanently in Lithuania, the applicant would have a right to ongoing contact: essentially, four times a year there would be seven to ten days’ residential contact between him and his son. The first two meetings would take place in the United Kingdom, once the mother had brought the child there. That was contingent upon the father paying a sum to fund the trip, namely 600 pounds sterling (GBP) for each visit. Thereafter the father would have the choice as to where this contact was to take place and he could travel to Lithuania, pick up the child and communicate with him in any location worldwide that he wished.
20. The applicant attended the court hearing. At the end thereof the judge informed the applicant that the judgment would be enforceable in Lithuania subject to applications being made there in respect of the contact order after the child had returned to live there permanently.
21. On 18 June 2010 the HCJ adopted a revised judgment and order, reiterating that the applicant and V.T. were not on good terms with each other and that it had thus had to take a difficult decision on 28 April 2010 when it ruled that the mother should have permission to take the child to live in Lithuania permanently. There was a risk, as portrayed by the applicant, that the applicant could be shut out of the child’s life by the mother’s family. However, in the meantime no significant or dramatic change of circumstances had occurred which would necessitate amending the custody decision. On this point the HCJ also expressed its confidence in the Lithuanian courts:
“An additional point is that it seems to me that it is not open to me to proceed on the basis that the Lithuanian courts will do anything other than deal with this matter pursuant to [child’s] welfare principle. They are subject to Brussels II revised. Albeit I understand that the father was unhappy with the conclusions reached in the Lithuanian court, to my mind I cannot accept his submission that even if the mother and her family demonstrate the hostility he asserts, the Lithuanian court will join in and will not seek to promote the underlying theme of my judgments, namely, that there should be a contact between this father and son”.
22. As regards the jurisdiction of the Lithuanian courts for further examination of issues relating to parental responsibility and thus contact, the HCJ held:
“(a) recognising and intending that, subject to Article 9(1) of Council Regulation (EC) No 2201/2003, upon the Child, A.M., leaving the jurisdiction of England and Wales to live permanently in Lithuania pursuant to paragraph 3 of this Order, the courts of Lithuania will have jurisdiction in matters of parental responsibility, and thus contact ...”
23. The contact order established by the HCJ on 28 April and revised by it on 18 June 2010 set out three stages of contact:
- the first stage covered the period from 19 June until 14 July 2010, when the mother was to bring the child to the United Kingdom for paternal contact, subject to and conditional upon the applicant paying the sum of GPB 3,000 to the mother of the child;
- the second stage of the parental contact covered two periods of contact - 18-25 September and 11-18 December 2010 within the jurisdiction of England and Wales; two weeks before they were to take place, the applicant was to pay GBP 600 to the mother’s solicitors for the purpose of meeting the costs incurred by the mother when travelling with the child to the jurisdiction of England and Wales;
- the third stage covered two periods of paternal contact
19-28 March and 18-27 June 2011, when the applicant was to pick up his son at the Romanian Embassy in Vilnius and was allowed to choose any location worldwide to be with his son; as of July 2011, the applicant could take his son from Vilnius and travel with him worldwide four times a year, for ten days on each occasion.
24. Lastly, the applicant raised the argument that from a practical point of view it would be easier for him to travel with his son if the boy had a passport from the same country. The HCJ thus ordered that after 1 September 2010 V.T. would provide the Romanian and/or Moldovan authorities with relevant documents and information to enable the applicant to obtain Romanian and/or Moldovan passports and/or travel documents for the child. Should the mother fail to comply, the applicant could lodge a complaint with the HCJ, which retained jurisdiction on this sole issue of passports/travel documents.
25. The applicant sought leave to appeal against the HCJ judgment and order of 18 June 2010, but on 16 September 2010 the Court of Appeal of England and Wales refused his application.
C. The proceedings regarding the execution of the contact order as set out by the HCJ
26. The first stage of the contact order adopted by the HCJ was implemented. The applicant paid V.T. the sum of GPB 3,000 for the costs incurred by her when taking their son to the United Kingdom, and V.T. took the child to London for four weeks’ paternal contact, which should have lasted from 19 June until 14 July 2010.
27. During that visit, on 8 July 2010 the boy’s guardian ad litem informed the HCJ that she was concerned about the risk factors in relation to ensuring the boy’s safety and his return to his mother’s care in the light of their imminent return to Lithuania. The guardian noted that she had been made aware that the applicant had made an application to the Court of Appeal for leave to appeal against the HCJ judgment and order of 18 June 2010. In the words of the boy’s guardian, the applicant had made abundantly clear his “obdurate attitude” to the judgment and order issued by the HCJ and his “steadfast view” that his son should live in the United Kingdom, irrespective of the child’s needs and best interests, which, as agreed by the HCJ court and the child care specialists, were best met on a day to day basis by his mother. The guardian also noted that the previous month the applicant had informed the United Kingdom authorities of his intention to leave the United Kingdom following the last session of his July 2010 contact period. Furthermore, the HCJ order of 18 June 2010 had allowed for the applicant to apply for a Romanian or Moldovan passport. In that connection, in June the applicant’s solicitor had urged V.T.’s solicitor to sign her son’s Romanian passport application form immediately. For the above reasons, the boy’s guardian ad litem had serious concerns that there was an increased risk of A.M. being abducted by his father. She thus recommended that the order of 18 June 2010 be varied and that the court suspend the last session of contact scheduled for 10 July to 13 July, allowing the boy and his mother to return to Lithuania before the expected time.
28. In addition to that, in an email of 9 July 2010 to the applicant from the Children and Family Court Advisory and Support Service (hereinafter - “Cafcass”) of England, a Cafcass lawyer wrote:
“Dear Mr Manic
I understand you have been served with the passport and tipstaff orders. I am concerned to note that you initially informed the tipstaff you only had one passport but after further discussions handed over two passports. The tipstaff have also reported to us that you had several passport photos of A.M., again this is of concern.
I realise you are not legally represented and I think it would be advisable for you to obtain legal advice before we next attend court. I can however impress upon you that if you breach the current orders and A.M. is not returned to his mother at the conclusion of contact then there will be very serious implications on your future contact with A.M. I therefore hope that you enjoy the following four days of contact and that you return him to his mother at the appropriate time and date.”
29. On 9 July 2010 the HCJ found the Cafcass communication
ill-advised. The Moldovan and Romanian embassies were nonetheless ordered to advise V.T.’s solicitors if the applicant had made any application for travel documents in respect of the child and to refrain from issuing any such document. Having in the following days been informed by those two embassies that they had not been approached for a passport for the boy, the HCJ then ordered that V.T. make the boy available for the full visit in July. The boy’s mother afterwards took the boy to live with her in Lithuania.
30. On 16 September 2010 V.T.’s lawyer wrote to the applicant stating that V.T. was not proposing to bring their son to the United Kingdom so that the boy could see his father. V.T. believed that it would be too stressful for the boy and that the child was not ready to spend a week away from his mother. The applicant was also informed that jurisdiction over contact arrangements had now passed to the Lithuanian courts. V.T.’s lawyer also enclosed a cheque for GBP 600 by way of reimbursement of the sum the applicant had paid in relation to V.T.’s travel and accommodation expenses for the staying contact in September 2010.
31. On 7 October 2010 the applicant contacted the International Child Abduction Unit, the Central authority within the meaning of Council Regulation (EC) No. 2201/2003 in England, as regards the non-enforcement of the second stage of the HCJ mandate of 18 June 2010. The applicant noted that even though the GBP 600 for the September visit had been returned to him, he was ready to pay it again at any time should the contact go ahead.
32. On 18 October 2010 the aforementioned United Kingdom authority contacted the Child Rights Protection and Adoption Service in Lithuania (Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba, hereinafter - “the Service”) regarding the non-enforcement of the HCJ judgment and order. All the relevant documents ‒ including the HCJ contact order of 18 June 2010, the letter from V.T.’s solicitor (see paragraph 30 above) and the application form where the applicant stated that he was ready to pay GBP 600 so that a future visit would take place ‒ were transferred to the Lithuanian authority.
33. On 25 October 2010 the Service informed the International Child Abduction Unit in England that certificates issued in EU member states were directly enforceable in Lithuania, and they had therefore been submitted to a bailiff for execution (see paragraph 73 below). The Service also provided its counterpart in England with a list of the bailiffs acting in Utena region, where V.T. and the applicant’s son lived, and advised the applicant to contact one of the suggested bailiffs directly so that the HCJ order could be executed. The Service also noted that the procedural activity of the bailiff responsible for the enforcement of a foreign contact order was supervised by a regional court.
34. On 30 October 2010 the applicant contacted a bailiff working in Utena district of Lithuania. As is evidenced by the documents in the Court’s possession, between 30 October 2010 and 10 February 2011 the applicant wrote twenty six emails to the bailiff. The emails were written in English, with a Google translation into Lithuanian. In his very first email to the bailiff, the applicant noted that he had a certificate for a contact order under Article 41 of Regulation (EC) No. 2201/2003. As explained in his emails of 2 and 4 November 2010, he attached the enforcement certificate, a letter to the Lithuanian Central authority, the letter from V.T.’s solicitors (see paragraph 30 above) and proof that he had paid 130 Lithuanian litai (LTL, approximately 37 euros (EUR)) for the execution of the HCJ judgment in Lithuania, and promised to send other relevant information. The applicant also asked the bailiff to notify him if she was missing any documents and to inform him about the enforcement procedure. In his email of 2 November 2010 the applicant also indicated that, if it made it easier for the bailiff, she could reply to the applicant in Russian, a language he declared that he could understand.
35. In those emails to the bailiff, the applicant wrote, in particular, that he had sent the documents needed for the execution of the HCJ judgment by post (email of 5 November), and that Cafcass had assured him that the documents as posted by him to Lithuania were in order (email of 19 November, also attaching his email correspondence with Cafcass). It is apparent that the applicant and the bailiff spoke on the phone on 19 November, when the bailiff confirmed to the applicant that she had received the documents by DHL delivery the day before, but stated that the documents were not “original”. On 23 November the applicant again sent the documents to the bailiff via DHL post. He explained that the courts in England used black ink for the stamps but that, even so, the documents were marked as “original”. The same day the bailiff emailed the applicant saying that she needed the original paperwork, not photocopies. The applicant then asked the court in England to seal the HCJ order and posted the documents to the bailiff again.
36. By emails of 3 and 7 December the applicant asked the bailiff to inform him how the bailiff’s meeting with the child’s mother had gone, as regards the execution of the HCJ order, and mentioned that he was ready to make the payments according to the HJC order, so that the next visit [that of December 2010] would take place. By email of 9 December the applicant asked the bailiff to update him in writing about the steps she had taken to enforce the contact order. He mentioned that time was passing and this would cause damage to his relationship with his son. The applicant also asked the bailiff a number of times at what stage the enforcement procedure was (email of 13 December). In the applicant’s view, even though the bailiff’s assistant had told him over the phone that the matter had been passed over to the Lithuanian court, the applicant had received no explanation in writing as to which court that was and when the Lithuanian court decision was to be taken. The applicant wrote that “the blackout of information was leading me to believe that there was something wrong in the middle. I do not want to speculate and would be grateful if you wrote me a few lines to explain what is going on” (email of 15 December 2010). Later on, the applicant wrote that the bailiff’s “silence was agonising” (email of 5 January 2011). On 27 January the applicant reiterated his complaint that the bailiff had not informed him why the case was “dragged out”. He also asked the bailiff to provide him with answers in writing as well as with information about what he named “Complaints and Procedures”. Further, as is evident from the applicant’s emails of 1 and 7 February, the bailiff had told him over the phone that the Lithuanian court wanted the applicant to be present in the courtroom in Lithuania. He asked the bailiff what would be the reason for his appearance in court, but the bailiff did not respond. In an email of 8 February the applicant also wrote that, according to the bailiff, V.T. had not complied with the contact order because he had not paid her the GBP 600. The applicant explained however, that he had paid that sum, as mentioned in the letter of 16 September from 2010 V.T.’s lawyers, and asked the bailiff whether that evidence had been put before the Lithuanian court. Lastly, by an email of 10 February the applicant wrote that he could not understand the bailiff’s silence and why his emails went unanswered. He asked whether the bailiff had received instructions from her superiors or from Government agencies not to engage in any correspondence with him.
37. On 20 December 2010 the bailiff established that V.T. had not delivered the child for paternal contact which, in accordance with the order of the HCJ, was due to take place between 11 and 18 December 2010. For that reason, on 27 December 2010 the bailiff initiated court proceedings against V.T. concerning the non-enforcement of the United Kingdom court’s order.
38. On 26 January 2011 the Utena District Court sent to the applicant’s address in London a notification that court proceedings regarding non-execution of the HCJ judgment about his contact rights had been opened in Lithuania. The court wrote to the applicant that his “participation in the oral court hearing was not obligatory”. It was also explained to the applicant that he should nominate a representative in Lithuania on whom all the procedural documents could be served. Failing that, all procedural documents intended for the party residing abroad would remain in the case file and would be deemed to have been served.
39. In April 2011 the Lithuanian authorities granted the applicant legal aid for one year for the proceedings concerning non-execution of the HCJ order in Lithuania.
On 22 April 2011 the State-appointed lawyer wrote to the applicant that she had become acquainted with the case regarding the non-execution of the HCJ judgment. She wrote that V.T. had not taken the son for the visit [of December 2010] because the applicant had not transferred GBP 600, and asked him to explain the situation and send her a copy of the document confirming the transfer of that sum.
The same day the applicant wrote to the State-appointed lawyer stating that both the bailiff and the Utena District Court had the relevant documents. The applicant also attached to the letter some documents detailing the facts. He further attached the letter of 16 September 2010 (see paragraph 30 above) as proof that the child had not been taken to England in September, even though he had sent the money for that visit to materialise. Lastly, the applicant expressed his willingness to provide any other information, if needed.
40. On 27 April 2011 the Utena District Court dismissed the bailiff’s complaint. The applicant did not take part in that hearing, but had a State-appointed lawyer. As the court decision reads, “from V.T.’s explanations, information existing in the case-file, the explanations of the bailiff, and those of the [applicant’s] lawyer, it is clear that [V.T.] failed to execute the [HCJ] judgment, i.e. between 11 and 18 December 2010 she did not take the child A.M., born on 18 September 2007, for the contact visit with his father, because the father of the child had not paid GBP 600, and V.T. is unemployed and has no funds to take the child to England”. The Utena court also noted that by interim protective measures (laikinosios apsaugos priemonės) of 1 March 2011 imposed by the same court, the applicant was prohibited from removing the child from Lithuanian territory (see paragraphs 47-49 below). The decision stated that it could be appealed against within seven days.
41. On 2 May 2011 the Panevėžys State legal aid office informed the applicant by email about the court decision of 27 April 2011 and sent him its unofficial translation into English. Later that day the applicant emailed the State-appointed lawyer asking for an explanation as to what had happened in the courtroom on 27 April 2011. In an email of 2 May he asked that lawyer to appeal against the decision of 27 April, so that the seven days’ time-limit to appeal was not missed. On 16 May 2011 the lawyer acting under the legal aid scheme posted the decision of 27 April 2011 to the applicant. The Government stated that the applicant had not appealed against the 27 April 2011 decision.
D. New court proceedings in Lithuania regarding the applicant’s contact rights
42. According to the medical documents dated 19 July, 2 August and 30 September 2010, after the child’s and his mother’s visit to England for the contact visit, the boy returned very anxious, he could not sleep at night and he was afraid of people. The boy was also very active, irritable and required exceptional attention from his mother. As of 9 September 2010 the boy had been visiting a mental health centre. He had been diagnosed with emotional disorder, manifested as increased anxiety and frequent mood change.
43. On 13 December 2010 V.T. addressed to the Utena District Court a request that the child contact arrangements as set out in the HCJ judgment of 18 June 2010 be changed and that she be awarded child support and child support arrears (skola už vaiko išlaikymą) by the applicant. In support of her request, V.T. included the aforementioned medical records.
44. She submitted a modified claim on 9 February 2011. On that day she also applied to the court for interim protective measures to suspend execution of the contact order of the HCJ, and not to allow the applicant to be alone with his son. V.T. stated that the applicant had not paid the sum of money mentioned in the HCJ judgment and that the contact visits between him and the child had therefore not taken place. It was also her belief that the child did not recognise his father. Moreover, it was not in the child’s interests to communicate with the applicant in England, as the HCJ had ordered, because that environment was unfamiliar to the boy. She attached to her request what appears to be the Cafcass email of 9 July 2010 and the HCJ decision of the same day. V.T. insisted that the boy should never communicate with his father without her being present.
45. On 22 February 2011 the Utena District Court accepted for examination V.T.’s request for the change of parental contact. On the same day the court decided to examine V.T.’s request for interim protective measures on 1 March 2011, and not to inform the applicant about that oral hearing, without indicating in the text of the decision the reason why the applicant should not know about the hearing beforehand. The child care authority and V.T. were invited to attend the hearing. Moreover, the court deemed V.T.’s participation at the hearing to be obligatory. The court further held that, as the applicant resided in England and the question of interim protective measures had not yet been decided, for reasons of procedural economy any procedural decisions should be sent to the applicant only once the issue of interim protective measures had been examined. This procedural ruling was not appealable.
46. On 28 February 2011 V.T. submitted to the Utena District Court further written clarifications as to the necessity of interim protective measures. She claimed that the applicant might kidnap and not return their son should the boy be taken to England for a contact visit. She also stated that the applicant had also been prohibited from having contact with the boy for four days of the contact period in July 2010. It is apparent that V.T. relied on an email of 9 July 2010 from Cafcass to the applicant as evidence (see paragraph 28 above). V.T. also stated that after his last meeting with his father, the boy had been nervous and afraid of other people.
47. By a decision of 1 March 2011 the Utena District Court granted in part V.T.’s request for interim protective measures. At the hearing the child’s mother was present, as was a representative of the child care authorities, who observed that the applicant ought to retain the right to have contact with his son in Lithuania. The authority nevertheless took the view that the applicant should not be allowed to remove the child from Lithuania for fear that he might flee with his son. In Lithuania, the boy was spry and V.T. took good care of him. As the record of the hearing reads, V.T.’s request was essentially based on her fear that the applicant would not return the child to her if he was allowed to take his son from Lithuania. She also stated that after the staying visit of July 2010 the boy had been nervous and exhausted and would not leave her side.
48. The Utena District Court noted a conflict between the applicant and V.T. over the child’s contact arrangements. On the basis of the email from Cafcass dated 9 July 2010 (see paragraph 28 above), the Utena District Court found:
“The documents submitted prove that the [applicant] was going to take the son away from the United Kingdom and prepared other personal documents for him for that purpose; during his contacts with the child, the latter’s personal documents were therefore taken from him and he was prohibited from removing the child from the jurisdiction of England and Wales. Taking this into account, there is a real risk that the execution of the [Lithuanian] court decision might become more complicated (if it were to become necessary to apply to a national court of a foreign State for acknowledgment and permission to execute a Lithuanian court decision, if one were to be made in V.T.’s favour) or even impossible (if, for example, the applicant were to conceal the child’s whereabouts or change them periodically). The risk that the execution of the court decision might become more complicated or even impossible constitutes a basis for ordering interim protective measures (...). It was also taken into account that the child’s domicile is in Lithuania, where he attends a kindergarten, and a sudden change in the environment might therefore have a negative impact on a child.”
49. The Utena District Court nevertheless acknowledged that a child whose parents were separated had the right to have constant and direct contact with both parents irrespective of their places of residence. It was also of paramount importance to avoid the alienation of the child from his father. Given that the applicant resided outside Lithuania and this could make it problematic for him to have contact with his son on certain days, the court determined that the applicant had the right to have contact with the child on any day on the premises of the Utena region child care authorities and in the presence of their representative. With prior notice, the applicant could see the child every day from 4 p.m. to 6 p.m. V.T. was obliged to make the child available for the contact.
50. On 3 March 2011 the Utena District Court sent a notice to the applicant’s address in London about the pending civil case for maintenance of his son, the establishment of the new contact order and the applicant’s right to respond to V.T.’s claim. The court further reiterated the applicant’s duty to appoint a representative living in Lithuania, on whom all the procedural documents would be served by the court (Article 805 of the Code of Civil Procedure). On the same day V.T.’s lawyers informed the applicant by email about the district court’s decision to apply interim protective measures and sent him an electronic copy of that decision, in Lithuanian. It was explained to the applicant that the court decision would be translated and served on him as soon as possible by the Utena court itself or by post. The lawyer also explained to the applicant that by the decision of 1 March 2011 the Utena District Court had decided to apply interim protective measures and to prohibit the applicant from removing his son from the territory of Lithuania. The applicant was informed that the decision had entered into force on the day it was issued.
The next day the applicant wrote an email to the Utena court acknowledging that he had received a court decision, but complaining that the content was in Lithuanian, and therefore he could not understand it.
The decision of 1 March was translated into English and on 14 March 2011 the Utena court posted it to the applicant’s address in London. Because of technical problems, the decision was served on the applicant on 1 June 2011. The 1 March 2011 decision could be appealed against within seven days from the day it had been served.
As established on 4 March 2014 by the Panevėžys Regional Court, the applicant did not appeal against the decision of 1 March 2011.
51. On 29 July 2011 the Utena District Court sent a written notice to the applicant informing him that on 29 September 2011 it was going to consider V.T.’s claim for changing the child contact arrangements and awarding the child support. The applicant was also informed that, in accordance with Article 805 of the Code of Civil Procedure, when a party living abroad does not designate any authorised person, all procedural documents intended for the party living abroad will remain in the case file and will be deemed to have been served.
52. The Utena District Court held the planned preparatory meeting on 29 September 2011, which the applicant did not attend. Nor did he take part in a subsequent hearing on 24 November 2011, even though he had been informed about it by that court.
53. At that subsequent hearing, about which the applicant was informed but which he did not attend, the Utena District Court asked the English judicial authorities to question the applicant as a witness so that it could be established what property he owned in England in connection with the claim for child support. Later on, the Utena District Court postponed hearings scheduled for 12 January and 23 February 2012 until such time as it had received, from the United Kingdom authorities, information about the property the applicant owned in England.
54. In December 2011, the applicant asked the Lithuanian child care authorities about the well-being of his son. In reply, the Lithuanian child care authorities described the child’s living conditions in Lithuania: he had a room of his own in V.T.’s parents’ house and V.T. paid for his kindergarten, food and clothes. In sum, the boy’s living conditions were good and the child care authority had no concerns about his well-being.
55. On 2 April 2012 the applicant gave evidence about his property in England. The Utena District Court received that evidence at the end of April. On 8 May 2012 the court scheduled a preliminary hearing in the civil case for maintenance and contact rights for 6 June 2012. The parties to the case, including the applicant, were informed about that future hearing.
56. On 26 June 2012 the Utena District Court adopted the decision regarding the maintenance of the applicant’s son and the order for the establishment of the contact between the applicant and the child. The court also noted that judicial documents had been served on the applicant, he had been granted the right to file a statement of defence with regard to the claim, and he had been informed about the preparatory hearing; moreover, he was obliged to submit details about his financial situation but he had neither filed any statement of defence, nor submitted the requisite details about his financial situation. Neither had the applicant expressed his opinion regarding V.T.’s claim in his written explanations. The court established that V.T. had taken all the measures necessary to satisfy her son’s interests so that he could grow up in a healthy environment. Having assessed the parties’ financial situations, the Utena District Court ordered the applicant to pay LTL 400 (EUR 115) per month in child support.
57. As to the child contact arrangements, the Utena District Court held:
“The details of the case show that the child contact arrangements were established by the Order issued by the United Kingdom High Court of Justice, Family Division, on 18 June 2010 and under this Order the defendant was expected to have contact with his son on the following dates: from 18 September 2010 to 25 September 2010; from 11 December 2010 to 18 December 2010; from 19 March 2011 to 28 March 2011; from 18 June 2011 to 27 June 2011, and thereafter four times a year for a period of ten days each time. After the first two contact sessions the father was to have the right to choose any place in the world for all further contact sessions and to travel with his child without being accompanied by his mother.
The [applicant] has not submitted any details proving that he had any contact with his child on the aforementioned dates or stating what the reasons were if he did not have such contact. [V.T.] stated that the last time the father saw his child was June 2010. The email submitted shows that no payment was received with regard to the contact that was due to occur on 11 December 2010 ... During the period of examination of the case, the [applicant] was allowed to contact his son in Lithuania in the presence of the representative of the Department for Protection of Children’s Rights ... According to the information provided by the representative of the Department for Protection of Children’s Rights ... no contact sessions between father and son took place during the period of application for interim protective measures lasting from 1 March 2011 to June 2012. As there is no evidence that there has been any contact between father and son since June 2010, there are no reasonable grounds to state that the [applicant] considers the meetings with his son significant and that there exists a close relationship between him and his son so it is indeed probable that the sudden departure of the child with his father and his removal from his habitual environment would not enhance the child’s sense of security or his emotional stability and might be harmful to him. Therefore the approach in this matter should be more cautious.
The court agrees with the argument put forward by [V.T.] that the overriding interest regarding the child is to develop in a healthy, safe and quiet environment where he would not experience psychological tension, fear and perpetual conflict. It would appear from [V.T.’s] explanations and from email communications that there are reasonable grounds for stating that there is conflict in the relationship, personal discord, and an absence of tolerance between the parties, making communication between the respondent and his child complicated. However, according to medical documents submitted it cannot be unequivocally asserted that the child’s irritability is purely a consequence of the respondent’s contact sessions with the child. The medical reports state that the child is especially active and demanding of exceptional attention from his mother and that this condition was recorded on 30 August 2010 but ‒ as stated by [V.T.] ‒ the last time the [applicant] saw his child was June 2010. This condition could therefore be caused by strained relations between [V.T.] and [the applicant]. On the other hand, it should be noted that a child who is a minor cannot be a hostage of his parents’ conflict and the conflict relationship between the parties is not a circumstance justifying a need to restrict the [applicant’s] contacts with his child.
During the proceedings it is permissible for a child to be questioned, unless this cannot be done due to his age or degree of maturity. A.M. was born on 18 September 2007, i.e. his age allows it to be concluded that he is not mature enough to express his ideas regarding the circumstances of the case, or to express his opinion, and he was therefore not questioned during the hearing.
In circumstances such as these, the court determines the procedure for the father to have contact with the child by taking into consideration the child’s interests and by creating a possibility for the separated father to be involved in the child’s upbringing (...). At the same time, the period during which a close emotional bond between the [applicant] and the child might be restored should be established as lasting until the child is seven years old.”
58. Accordingly, for the first six months after the date when the Utena District Court decision came into effect, the applicant was to communicate with his son for no more than two hours per working day for ten days per month, in an environment to which the child was accustomed - at the child’s home or the child care authority’s premises, in the presence of his mother, a psychologist and a child care specialist. During the following six months the applicant could communicate with his son no more than four hours per day for twelve days per month, either in the child’s accustomed environment or in another place, in the presence of the child’s mother or without her, if she so agreed. Lastly, during the period starting from the thirteenth month and until his son’s seventh birthday, the applicant could see him on a daily basis for twelve days in March, June, September and December, in the child’s accustomed environment, as agreed by the applicant and V.T., but without her being present. The applicant also had the right to visit his son unimpeded whenever his child was sick. The parents were to ensure that the possibility existed for each of them to communicate with the child by telephone (or other electronic means) or some other form of communication.
59. The applicant acknowledges that he received the Utena District Court decision on 13 August 2012.
60. In response to the applicant’s request for information, on 28 August 2012 the Utena District Court sent the applicant a letter concerning his right to appeal against the decision of 26 June 2012 within thirty days. The court also informed the applicant about his right to restore a missed procedural time limit, if that time limit had been missed for serious reasons. The court further reiterated that the applicant had not appointed a representative living in Lithuania for dealing with contact rights and child maintenance, and on whom all the procedural documents would be served by the court. That being so, pursuant to Article 805 of the Code of Civil Procedure, all procedural documents addressed to a party residing abroad were left in the case file and were deemed to have been served.
61. On 13 February 2013 the applicant asked the Utena District Court to reopen the court proceedings. He argued that he had missed the statutory three-month time-limit for such reopening because he was a Romanian citizen residing in the United Kingdom and did not speak Lithuanian.
62. By a ruling of 14 June 2013 the Utena District Court refused the applicant’s request for reopening. The court first pointed out that a judge’s notice dated 3 March 2011 had explained the applicant’s duty to appoint a representative or an authorised person and the consequences of the failure to fulfil that duty (see paragraph 50 above). However, the applicant had not appointed any such representative. Furthermore, although the applicant acknowledged that he had been served with the 26 June 2012 decision (translated into English and containing the provisions as to how it could be appealed against) on 13 August 2012, he had not asked for a re-opening of the proceedings until 13 February 2013, that is nearly six months after receiving it. In reply to the applicant’s argument that he was a foreigner, the Lithuanian court noted that the applicant knew the rules regulating State-provided legal aid and could have asked for it in a timely fashion, because in earlier proceedings for non-enforcement of the HCJ contact order, he had been provided with State-provided legal aid by a decision dated 24 March 2011 (see paragraph 39 above).
63. On 4 March 2014 the Panevėžys Regional Court dismissed another request by the applicant to reopen the civil proceedings and to review the Utena District Court’s decision of 26 June 2012 concerning the contact order between the applicant and his son. The court reiterated that the applicant had not communicated directly with his son since June 2010. Similarly, there was no evidence of the applicant ever having visited his son either after the court decision of 1 March 2011 regarding interim protective measures or after the subsequent decision of 26 June 2012, both of which allowed the applicant to see his child for several hours each day. As to the applicant’s plea that the Lithuanian court order would cause him inconvenience - especially the necessity of travelling to Lithuania ‒ this did not mean that the contact as established by the Utena District Court on 26 June 2012 had established was negligible. According to the contact order, the applicant could see his son on workdays, ten to twelve days a month. Knowing about such a contact order, the applicant could plan his work and income accordingly. It was also significant that, according to the contact order issued by the HCJ on 18 June 2010, the child had to be collected from the Romanian embassy in Vilnius. Consequently, the applicant would in any case have to leave his place of residence and job in England and come to Lithuania. He would also inevitably have to invest time and money. Accordingly, taking into account the child’s interests - his age, state of health, need for mother’s attention, and the fact that the applicant had not directly communicated with his son since June 2010 ‒ the contact order as set by the Utena District Court on 26 June 2012 reasonably gave priority to the child’s interests whilst not neglecting the applicant’s right to be in contact with his son.
64. Lastly, the Panevėžys Regional Court noted that V.T. had moved to Lithuania in the summer of 2008. The child’s residence had been declared to be Lithuania in July 2008. V.T. had lodged the request that the child contact order be modified with the Utena City District Court when more than three months had passed after the move to Lithuania (see paragraphs 22 and 43 above). It followed that ‒ pursuant to Articles 8 and 9 of the Regulation (EC) No. 2201/2003 ‒ in 2011 the United Kingdom courts were no longer able to consider decisions concerning the modification of contact orders, as those cases fell within the jurisdiction of the court of the Member State where the child was habitually resident, in this case Lithuania.
65. By a ruling of 12 May 2014 the Supreme Court refused to examine the applicant’s appeal on points of law.
66. On an unknown day, V.T. asked the Utena District Court to permanently restrict the applicant’s parental rights. She argued that the applicant did not communicate with his son. In turn, the applicant asked the Lithuanian court to suspend the proceedings until the Court had examined his application against Lithuania (no. 46600/11). On 10 June 2014 the Utena District Court suspended the proceedings in Lithuania until the applicant’s case is decided by the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
67. The Civil Code provides that a father or mother living apart from a child has the right to have contact with the child and be involved in the child’s upbringing. A child whose parents are separated has the right to have continuous and direct contact with both parents, irrespective of their place of residence. The father or the mother with whom the child resides may not interfere with the other parent’s contact with the child (Article 3.170).
The other relevant domestic law as regards parents’ contact rights is reproduced in the judgment of Z.J. v. Lithuania (no. 60092/12, §§ 68-70, 29 April 2014; for relevant international law also see §§ 71-73 of that judgment).
68. The Law on the Implementation of European Union and International Law Acts Regulating Civil Procedure in Lithuania (Civilinį procesą reglamentuojančių Europos Sąjungos ir tarptautinės teisės aktų įgyvendinimo įstatymas) states that court judgments handed down in European Union Member States concerning access rights and child return are enforceable instruments. Certificates issued by the European Union Member States, described in Articles 41 and 42 of the Regulation (EC) No. 2201/2003 have the legal status of an enforceable document (Article 9 of the law).
69. In Lithuania the Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour is the authority tasked with assisting with the application of Council Regulation (EC) No. 2201/2003 (“Central authority”).
70. The Code of Civil Procedure in force at the relevant time provided that, in response to a request by a plaintiff, a court could apply interim protective measures if execution of a future court decision would otherwise become impossible (Article 144 § 1). The defendant had to be informed about the request and the hearing (apie prašymo nagrinėjimą yra pranešama atsakovui). Interim protective measures could only be applied without informing the defendant in exceptional cases where informing him or her would hamper execution of the interim protective measures or render their execution impossible (Article 148 § 1).
71. Pursuant to Articles 2 and 3 of the Law on Bailiffs (Antstolių įstatymas), a bailiff is a person authorised by the State and empowered by it to perform the functions of enforcement of writs of execution, to make findings of fact, or carry out any other functions provided by law. Bailiffs are appointed and dismissed by the Minister of Justice. In carrying out their functions, bailiffs must adhere to the principle of lawfulness as well as to the principles of civil proceedings. A bailiff must carry out his professional duties in good faith. In enforcing writs of execution, the bailiff must use all lawful remedies to protect adequately the interests of the plaintiff, without violating the rights and lawful interests of other parties to the enforcement procedure. In carrying out their functions bailiffs are independent and are guided in their activities by the Lithuanian Constitution and laws as well as by international treaties to which the Republic of Lithuania is a party.
The procedural actions of a bailiff are supervised by the judge of the region in which the bailiff is active (Article 594 of the Code of Civil Procedure).
72. The Law on State Guaranteed Legal Aid (Valstybės garantuojamos teisinės pagalbos įstatymas) provides that the State guarantees legal aid to persons to enable them to adequately assert their violated or disputed rights and interests protected under law. The State guaranteed legal aid is provided according to the principles of equality and protection of all persons’ rights and interests protected under law, as well as principles of quality and efficiency. The State guaranteed legal aid may also be granted to cross-border disputes, that is the disputes in which the applicant, at the moment of submitting an application for the provision of State guaranteed legal aid, is domiciled or habitually resident in a Member State of the European Union other than the one in which the court is sitting or where enforcement is sought (Articles 1-3 of the Law).
73. The party to the civil proceedings, who resides abroad and does not have a lawyer, must designate an authorised person who is resident in Lithuania, on whom all procedural documents intended for that party, should be served. If the party residing abroad fails to designate an authorized person, all procedural documents addressed to that party will remain in the court’s case-file and will be deemed to have been served. The party must be explained this consequence (Article 805 of the Code of Civil Procedure).
III. RELEVANT INTERNATIONAL LAW
74. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (known as “Brussels II bis Regulation”), reads as follows:
“1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”
Continuing jurisdiction of the child’s former habitual residence
“1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child’s former habitual residence.
2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.”
Recognition of a judgment
“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required...”
Non-review as to substance
“Under no circumstances may a judgment be reviewed as to its substance.”
“1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there...”
Cooperation on cases specific to parental responsibility
“The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:
(a) collect and exchange information:
(i) on the situation of the child;
(ii) on any procedures under way; or
(iii) on decisions taken concerning the child;
(b) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child;
(e) facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
75. Relying on Articles 6, 13 and 14 of the Convention, the applicant complained that the Lithuanian authorities had not enforced the HCJ judgment and order concerning his contact with his son. He submitted that the Lithuanian authorities’ actions had been deliberately misleading, concerted and “xenophobic”.
76. The Court considers that the complaints fall to be examined under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
77. The Government argued that the applicant had failed
to exhaust the available domestic remedies. Firstly, as regards the
non-enforcement of the HCJ judgment and order in Lithuania, the applicant, who
saw the bailiff’s actions to be insufficient, could have complained about those
actions or the lack thereof to the court, but had failed to do so. Similarly,
the applicant had not appealed against the Utena District Court’s decision of
27 April 2011, in which the court rejected the bailiff’s complaint against V.T.
as regards the contact visit of December 2010. Given that in that decision by
the Lithuanian court it had been established that the applicant himself had not
fulfilled the requirements of the United Kingdom court and had thus been responsible
for the non-enforcement of the contact order, it could only be presumed that
the applicant had agreed with the facts established therein, particularly since
it was clearly stated in the said decision that it was subject to appeal (see
paragraph 40 above). The Government admitted that the question of interim
protective measures had been decided on 1 March 2011 without informing the
applicant about the court hearing. However, it had been within the Lithuanian
court’s prerogative to ensure that the application of interim protective measures
was not impeded. Having regard to the fact that the meeting foreseen by the HCJ
was to take place on
19-28 March 2011 outside Lithuania, the Utena court had exercised precisely that prerogative.
78. The Government further observed that the applicant had never made an application to have the contact order amended. Since the end of 2010 he had made no attempts to visit his son in Lithuania. Furthermore, he had not visited the boy even after 1 March 2011, when the Utena court ‒ having regard to the judgment and order by the HCJ allowing the applicant to retain access rights ‒ had revised the contact order. In view of the fact that the applicant had not visited his son, it could only be presumed that he had found the aforementioned order too difficult to put into effect. At this point it also had to be noted that the decision of the Lithuanian court mentioning the possibility of appeal had been translated and served on the applicant. However, the applicant had not availed himself of that opportunity.
79. The applicant argued that notwithstanding the
decision of the Utena court of 1 March 2011 which had completely changed
the manner and place of contact between him and his son ‒ as established
by the HCJ judgment and order ‒ he had not remained passive. On the
contrary, he had applied for legal aid and had written a great number of emails
to the bailiff, the Utena court and the lawyer appointed to defend his
interests. Nevertheless, his efforts and email communications with those
persons and institutions had been one way only and of no benefit for the
paragraphs 34-36, 39 and 41 above). Firstly, he had not been notified about the forthcoming court hearing of 1 March 2011 concerning interim protective measures, and had not received an official copy of that decision until 1 June 2011, when, in his view, an appeal would no longer in practice have been effective or adequate. Secondly, the State-appointed lawyer had disregarded the applicant’s explicit request to appeal against the Utena District Court’s decision of 27 April 2011 not to fine V.T. for the contact visit of December 2010 that had never taken place. The applicant was therefore confident that he had exhausted the domestic remedies as regards his wish that the contact order as set out by the HCJ be executed in Lithuania.
2. The Court’s assessment
80. The Court reiterates that only remedies which are effective have to be exhausted. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (see Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006, and Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001). The Court further reiterates that the application of the rule of exhaustion of domestic remedies should be applied with some degree of flexibility and without excessive formalism (see, most recently, Čalovskis v. Latvia, no. 22205/13, § 207, 24 July 2014 and the case-law cited therein).
81. In the present case the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaints under Article 8 of the Convention that the decision-making in his case was flawed. It should therefore be joined to the merits.
82. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
83. The applicant observed that even though the interim decision of the Utena court theoretically never denied that contact between him and his son should exist, the question was whether that new contact was necessary, feasible and meaningful at all. The HCJ had emphasised that contact was to be arranged immediately, providing a basis for further developments (see paragraphs 16 and 17 above). However, the Utena court, by disregarding the HCJ judgment and Council Regulation (EC) No. 2201/2003, completely changed the substance thereof regarding any meaningful access to his child. The reasons advanced by the child’s mother ‒ namely, the psychological status of the child and her suspicion that the applicant would make an attempt to abduct him ‒ had never been adopted as a defence before the English courts. In those proceedings V.T. had never argued that the child’s psychological state would be affected if the child were to spend one week away from her. The mother’s agreement with the circumstances outlined in the HCJ judgment and order could be deduced from the fact that she had not appealed against either of them.
84. The applicant then noted that the predicament envisaged by the HCJ in paragraph 99 of its judgment of 28 April 2010, in which it envisaged very real difficulties for the applicant to engage in a meaningful contact in Lithuania, had indeed materialised (see paragraph 16 above). The Lithuanian authorities had acted only after an inexcusable delay and in such a way that they both blocked the enforcement and changed the substance of the English court’s contact order.
85. Firstly, the Lithuanian bailiff had acted with a significant delay during the proceedings for the enforcement of the HCJ decision concerning the contact order. On 4 November 2010 all the necessary documents, including the official request for enforcement and the proof of payment, had been sent to the bailiff by email. Afterwards, the same information had been despatched by DHL delivery on 16 and 23 November 2010 (see paragraphs 34 and 35 above). It was true that in December 2010 the bailiff had initiated the proceedings concerning V.T.’s non-compliance in relation to the second contact session, which should have taken place in December (see paragraph 37 above). However, the bailiff had not taken any measures concerning V.T.’s first failure to comply with the English court’s order in relation to the visit scheduled for September 2010. That was despite the fact that in an email sent to the bailiff on 7 December the applicant had clearly expressed his willingness to pay the sum of GBP 600 so that the December visit would take place (see paragraph 36 above).
86. Secondly, as regards the Utena District Court, time had been lost during the enforcement proceedings initiated by the bailiff against V.T. The bailiff had started the proceedings in December 2010, and the court had only adopted the decision on 27 April 2011, that is, four months later. On this last point the applicant referred to the Court’s case-law establishing that damage may result merely from the passage of time (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000-I).
87. In sum, in contrast to what has been suggested by the Government, the applicant’s attitude towards his right to maintain contact with his son had not been passive. His active participation was evident from the fact that he had solicited legal aid, had been involved in intense but unproductive correspondence with the bailiff, his lawyer, and the Utena court.
88. The applicant was also dissatisfied that the Utena court had failed to summon him to the hearing of 1 March 2011. Despite the absence of any dramatic change in circumstances as regards the child’s situation, the decision on interim protective measures had been issued in breach of Article 148 of the Lithuanian Code of Civil Procedure, which provides that such measures may be imposed without the other party’s knowledge only in exceptional circumstances. Next, the Utena court had failed to communicate to him immediately the decision of 1 March 2011, and the applicant had not received it officially until 1 June 2011. The consequences for the applicant of such ‒ in his view ‒ premeditated and intentional lack of communication during a specific three-month period were readily imaginable: both contact sessions - in March and June 2011 ‒ had been effectively blocked by the impossibility of appealing against the decision of 1 March 2011.
89. As to the reasonableness of the interim protective measures, they were applied in a situation where the Lithuanian court had possession of only certain selective information provided by V.T., that is to say the Cafcass letter of 9 July 2010, and had not seen the remainder of the evidence, which exonerated the applicant from kidnapping allegations (see paragraph 29 above). Accordingly, the interim protective measures imposed by the Utena court had not been necessary. Moreover, that decision of the Utena court had placed the applicant in a situation of unbearable hardship, and had completely changed the substance of the HCJ judgment of 18 June 2010, contrary to Article 26 of Council Regulation (EC) No. 2201/2003.
90. The applicant noted that he had not seen his son since summer 2010, or visited him after 1 March 2011. He submitted that the last time he had seen the boy had been 12 June 2011, via the internet, particularly Skype. Since then, V.T. had not allowed him to see or speak to the boy either on Skype or over the phone. The applicant mentioned that from 2008 up to the present date, he had only ever had “very unpleasant” experiences in relation to the Lithuanian authorities. During his visits to Lithuania in 2008 and 2009, and throughout the entire procedure before the Lithuanian court in Vilnius (see paragraphs 9-12 above), he had felt “ridiculed” by the authorities. During the proceedings before the HCJ, the applicant had informed that court about his concerns and expressed his reluctance to travel to Lithuania based on the experiences he had had with the Lithuanian authorities, but the judge had rejected those allegations as the applicant had unfortunately been unable to produce evidence to support his claim (see paragraph 16 above).
91. Taking into account the current situation, all the previous events and the apparent bias against the applicant on the part of the Lithuanian authorities, he was all the more reluctant to go to Lithuania to visit his son now. The applicant thus insisted that it was the original contact order as set out by the HCJ which should have been enforced.
(b) The Government
92. The Government noted at the outset that the HCJ judgment and order of 18 June 2010 had been recognised in Lithuania and required no subsidiary procedure for their enforcement. Nobody had ever questioned the recognition of the English court decisions. On the contrary, during further proceedings in Lithuania the underlying theme of those decisions, namely that there should be contact between the applicant and his son, had never been rebutted. In this context the Government also noted that the first stage of the contact order had been implemented, in summer 2010 V.T. had taken the applicant’s son to London for a visit.
93. The Government stated that they were not willing to look for excuses for V.T.’s decision not to take the child to England for the contact of September 2010. They noted that after the July 2010 visit the mother had decided that the child’s travel to England as well as a long stay away from her would have a negative impact on the boy. However, even though the execution of the HCJ’s judgment and order was therefore partly discontinued, the Lithuanian authorities did not learn of the existence of those decisions until 18 October 2010, when the United Kingdom authorities, at the request of the applicant, contacted the Lithuanian Service regarding non-enforcement. Subsequently, having been informed about this possibility and provided with a list of bailiffs by the Service, in November 2010 the applicant had contacted the bailiff and submitted a certificate issued following a procedure established by the Regulation (EC) No. 2201/2003. It was only from that moment that responsibility for the enforcement of the English court decisions in Lithuania began. That being so, the Lithuanian authorities acted without delay: the bailiff immediately contacted V.T. and initiated court proceedings against her. In addition, the applicant was provided with free legal aid to facilitate his rights in those court proceedings. As became apparent later on, it was the applicant himself who was at fault for the non-materialisation of the planned visit in December 2010 (see paragraph 40 above).
94. It was crucial to note that the circumstances of the applicant’s case differed significantly from other cases where a child had been illegally removed by one parent to another country. In line with the HCJ judgments and orders, it was decided that the child’s mother would be free to take him to reside permanently in Lithuania after the initial six-week contact session in London. The HCJ thus determined that the Republic of Lithuania should be the child’s permanent place of residence. Furthermore, regarding the Lithuanian courts’ jurisdiction in the present case, the HCJ emphasised that following Article 9 § 1 of the Council Regulation (EC) No. 2201/2003, three months after the child’s leaving the jurisdiction of England and Wales to live permanently in Lithuania, the Lithuanian courts would have jurisdiction in matters of parental responsibility, including contact. The English court only reserved jurisdiction regarding the issues related to the child’s Romanian and/or Moldovan passports and travel documents (see paragraphs 22 and 24 above). Consequently, pursuant to Article 9 § 1 of the Regulation, three months after the child had left the United Kingdom in July 2010, that is in October 2010, jurisdiction passed over to the Lithuanian courts and the Utena District Court in particular, which examined the application for interim protective measures and for the amended contact order that V.T. had lodged in December 2010.
95. Turning to the subsequent judicial proceedings in Lithuania, the Government observed that they had been initiated by the child’s mother V.T., who asserted that the child did not have a close relationship with his father because it was only in July 2010 in London that the child saw him last, and it had been the applicant’s fault that the visit of December 2010 had not occurred. There had been another ground for the court proceedings in Lithuania and for the adoption of an interim measure in particular, namely there existed a justifiable suspicion that, if the next contact (due in March 2011) ordered by the HCJ were to be executed in the manner prescribed by the English court, whereby the applicant would be able to remove the child from Lithuania and travel worldwide, the applicant might abscond with his son, thereby putting the child into a psychologically harmful situation and aggravating the implementation of the future decision of the Utena court in respect of parental contact rights. The danger was real, as evidenced by the letter of 9 July 2010 sent to the applicant by Cafcass and the HCJ order instructing the Romanian and Moldovan embassies to refrain from issuing travel documents for the child.
96. That being so, the application of the interim protective measures had not deprived the applicant of his right to be in contact with his son. On the contrary, by the decision of 1 March 2011 the Utena court had amended the contact order, permitting the applicant to see his son every day during specified hours. As the court observed, this was decided having particular regard to the applicant’s interests - he resided outside Lithuania and thus could face certain difficulties if the visits to his child were limited to specific dates. Moreover, the applicant had been kept constantly informed about all the hearings in the civil case before the Utena court and also the provisions of Lithuanian law as regards his right to participate in court hearings, to designate a representative and to lodge an appeal. This had been done even though the applicant had shown no willingness or interest in the case in that he had not attending court hearings, had not submitted his response to V.T.’s claim, and had not appealed against the decision of 1 March 2011 on interim protective measures. It was also of relevance that the Utena court on its own motion had provided the applicant with English translations of the documents and had sent them to England, even after the applicant had failed to fulfil his duty to appoint an authorised person in Lithuania on whom procedural documents could be served (see paragraphs 38, 50, 51 and 60 above).
97. The lack of the applicant’s driving interest in his son had been confirmed by the Utena District Court on 26 June 2012. Even so, the Lithuanian courts had emphasised that, notwithstanding the existence of the conflict between the applicant and V.T., the child could not be made a hostage of the situation. The hostile relationship between the parties in the civil case was not a factual circumstance justifying the need to restrict the father’s contact rights (see paragraph 57 above). Accordingly, the Utena court had issued the order for ongoing contact between the applicant and his son, so that an emotional tie between the two could be restored.
98. In sum, having regard to the circumstances of the case, in particular to the alteration of the parental contact order initially issued by the HCJ, the Government considered that there could to a certain degree have been an interference with the applicant’s right to respect for his family life. However, this had been in accordance with the law and necessary, taking into account the best interests of the child. The Lithuanian authorities had acted with due diligence and had taken all the necessary steps to allow the applicant to effectively exercise his contact rights. Regrettably, the applicant had not shown much willingness, on his part, thus generating the impression that his claims concerning alleged deprivation of his right of access to his son were merely an instrument in an ongoing hostile relationship with V.T. Accordingly, the case was significantly different from Lafargue v. Romania (no. 37284/02, § 96, 13 July 2006), where the applicant had even moved to live in another country so as to be close to his child.
2. The Court’s assessment
(a) Relevant principles
99. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005).
100. Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In both contexts, regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).
101. In relation to the State’s obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent’s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, among other authorities, Ignaccolo-Zenide v. Romania, cited above, § 94 and the case-law referred to therein). This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures (see, among other authorities, Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250), but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Fuşcă v. Romania, no. 34630/07, § 34, 13 July 2010).
102. The obligation of the national authorities to take measures to facilitate reunion is not absolute, since the reunion of a parent with a child who has lived for some time with other persons may not be able to take place immediately and may require preparatory measures being taken to this effect. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient. Whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299-A). The child’s best interests must be the primary consideration and may, depending on their nature and seriousness, override those of the parents (see Płaza v. Poland, no. 18830/07, § 71, 25 January 2011).
103. In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between a child and a parent who does not live with that child (see Ignaccolo-Zenide, cited above, § 102).
104. The Court also reiterates the conclusion it reached in Glaser v. the United Kingdom (no. 32346/96, § 70, 19 September 2000) that active parental participation in proceedings concerning children is required under Article 8 of the Convention in order to ensure the protection of their interests and that when an applicant, as in that case, applies for the enforcement of a court order, his conduct ‒ as well as that of the courts ‒ is a relevant factor to be considered. The Court has also acknowledged that arrangements of contacts may require great efforts on the part of the parent with whom the child no longer lives (see Kajari v. Finland, no. 65040/01, § 42, 23 October 2007). The Court has equally held that the alleged lack of action on the part of the applicant cannot lift the responsibilities incumbent on the public authorities, as the depositary of public force, for the enforcement of judicial decisions (see Fuşcă, cited above, § 30). The responsibility of a State under the Convention may arise for acts of all its organs, agents and servants. As is the case in international law generally, their rank is immaterial since the acts by persons accomplished in an official capacity are imputed to the State in any case. In particular, the obligations of a Contracting Party under the Convention can be violated by any person exercising an official function vested in him (see Wille v. Liechtenstein [GC], no. 28396/95, § 46, ECHR 1999 VII; Plesó v. Hungary (dec.), no. 41242/08, 17 January 2012).
(b) Application of these principles to the present case
105. The Court observes that it is common ground between the parties that the tie between the applicant and his child falls within the scope of “family life” within the meaning of Article 8 of the Convention.
106. As regards the instant case, the Court notes at the outset that the HJC established by a judgment of 18 June 2010 that the applicant’s son was to reside in Lithuania, with his mother (see paragraph 15 above). Accordingly, this case is different from those where the Court has examined questions of children being taken from one jurisdiction to another without a legitimate ground (see, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 28, ECHR 2010, and X v. Latvia [GC], no. 27853/09, §§ 12 and 13, ECHR 2013). That being so, the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 is not applicable to the facts of this case.
107. During the court proceedings in Lithuania, as well as those before the Court, the applicant has consistently claimed that the Lithuanian courts had no jurisdiction to review the contact order as set out by the HCJ in its judgments and orders of 28 April and 18 June 2010. The Court cannot share this view. Like the Government, it notes that the HCJ had indeed acknowledged that once the child had moved permanently to Lithuania for a period longer than three months, jurisdiction over the question of contact rights would pass to the Lithuanian courts (see paragraphs 22 and 94 above). The Court therefore accepts that the Lithuanian courts had jurisdiction to decide the issue of parental contact when V.T. addressed her request to them in December 2010 (see paragraph 43 above).
108. However, what is at the heart of the applicant’s complaint is his argument about the allegedly concerted efforts on the part of the Lithuanian authorities, including the bailiff, the Utena District Court and even his State-appointed lawyer during the decision-making process, as a result of which he was prevented from meeting his son in the manner set out by the HCJ. In the applicant’s view, the Lithuanian authorities’ failure to act diligently and honestly resulted in the situation in which he now finds himself, namely alienated from his son. In this connection the Court reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307-B). Consequently, the Court must first determine whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the applicant was sufficiently involved in the decision-making process, seen as a whole, in order to ensure the requisite protection of his interests. If he has not, there will have been a failure to respect his family life, because the interference could not be regarded as having been “necessary” within the meaning of Article 8 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121, p. 29).
109. The Court considers that the Lithuanian authorities’ obligations in respect of the applicant’s rights under Article 8 of the Convention, including their duty to act carefully and promptly, became effective on 18 October 2010, when the United Kingdom authorities informed their Lithuanian counterpart that V.T. had failed to bring the child for the contact visit due in September (see paragraph 32 above). The applicant then contacted a bailiff in the district where V.T. and their son lived. It is apparent from the applicant’s correspondence with the bailiff that their email communication was mostly one way. The Court finds it significant that within a time-frame of three months, the applicant wrote some 25 emails to the bailiff enquiring about the non-enforcement of the contact order. Initially, the applicant was constructive, offered to explain the situation, and paid the fee for the execution of the HCJ judgment. The applicant’s efforts to make himself understood and to assist the bailiff, inasmuch as this was possible whilst living in another country, are also apparent from the fact that his emails were drafted in English but Google-translated into Lithuanian. Later on, the applicant must have become more agitated and, in his own words, when faced with a dearth of information, started suspecting the Lithuanian authorities of concerted efforts to limit his right to have contact with his son. The applicant also asked the bailiff to provide him with a copy of the rules concerning “Complaints and Procedures”, but it transpires that no response was given to him (see paragraph 36 above).
110. The Court also does not lose sight of the fact that in his emails of 2 and 4 November 2010 the applicant conveyed to the bailiff the information to the effect that he was prepared to pay for V.T. to bring their son to London for a contact visit, which would be the visit scheduled by the HCJ for 11-18 of December (see paragraphs 31, 32 and 34 above). However, it transpires that the bailiff disregarded this last piece of information because, as the Utena court decision of 27 April 2011 reads, it was also on the basis of the bailiff’s testimony that the Utena court concluded that the December 2010 contact visit had not taken place because the applicant had failed to make a money transfer (see paragraph 40 above). Indeed, even though it was the missed September 2010 visit that prompted the United Kingdom authorities to contact the Lithuanian Service as regards the execution of a foreign judgment (see paragraphs 31 and 32 above), the missed visit of September 2010 is not even mentioned in the Utena District Court decision of 27 April 2011. The Court thus concludes that the Lithuanian authorities did not impose even the lightest of sanctions on V.T., thereby condoning her uncooperative behaviour and disregard for the HCJ judgment (see Shaw v. Hungary, no. 6457/09, § 73, 26 July 2011). As a result, the applicant was denied a right under Article 8 of the Convention to have his son stay with him for a visit so that they could engage in a meaningful contact without “the very real difficulties” which the applicant would feel if it were to take place initially in Lithuania (see paragraph 16 above; see also Lafargue v. Romania, cited above, §§ 102-104).
111. The other actor in what the applicant perceived to be a conspiracy against him in Lithuania was the Utena District Court. Without taking a stand on the applicant’s allegations of what he named as “synchronized attitude” against him, the Court nevertheless observes that V.T. contacted the Utena court with a request to review the contact order as set out by the English court on 9 February 2011, when the bailiff’s action against her was already pending. She also asked the Utena court to issue a temporary protective measure, and not to allow the applicant to be alone with his son (see paragraph 44 above).
112. For its part, the Utena District Court did not consider it appropriate to inform the applicant about the hearing scheduled for 1 March 2011, without specifying why secrecy was important and why the applicant’s attendance at the hearing, should he choose to participate in it, might place the child in danger. It is true that it appears from V.T.’s claim of 13 December 2010, and her amended claim of 9 February 2011 that she added documents concerning the applicant’s purported wish not to return their child. However, as the HCJ concluded on 9 July 2010, the allegation made by V.T. and also by Cafcass was ill-advised (see paragraph 29 above). Above all, by that time the child was already residing permanently with V.T. in Lithuania. It was therefore rather unlikely that the applicant would abduct the child ‒ a hypothesis not even mentioned in the Utena District Court decision of 22 February 2011 not to inform the applicant about the hearing ‒ if he were to go to Lithuania to attend that hearing (see paragraph 45 above). Since the applicant had no knowledge that hearing was to take place, he was unable to be there and to comment on any accusatory or exculpatory evidence. In this context the Court notes that the circumstances as presented by V.T. in support of her request for interim protective measures were not entirely accurate. Even though she stated that in July 2010 the applicant was prohibited from seeing the boy for four days, that information was not true (see paragraphs 29 and 46 above).
113. The Court also recalls that V.T. had not complied with the HCJ judgment and had refused to take their son for the visits of September and December 2010. Given that the next visit scheduled by the HCJ for the beginning of March 2011 was approaching, the Utena District Court’s hearing was of paramount importance for the applicant to re-establish a connection with his son to the greatest extent possible. Assuming that the basis for the temporary protective measure was V.T.’s indication of a potential abduction, the proceedings would have involved an assessment of the applicant’s character. In the Court’s view, this was a question of fact which could not be adequately resolved on the basis of the case file alone. In such circumstances, where an assessment of this kind played such a significant role and where the outcome could be of major detriment to the applicant, it was essential for the fairness of the proceedings that the Utena court afford the applicant an opportunity to be heard and to participate fully in order to assure his right to be in contact with his son in the future (see Jucius and Juciuvienė v. Lithuania, no. 14414/03, § 31, 25 November 2008; also see X v. Latvia, cited above, § 102).
114. The Court next turns to the applicant’s allegation that the lawyer who was appointed by the Lithuanian State to assist him in the matter of enforcing the HCJ judgment also failed to represent his interests properly. Indeed, in his email to the lawyer of 22 April 2011, the applicant informed the lawyer that he had already sent the necessary documents to both the bailiff and the Utena court as well as attached the letter of 16 September 2010 (see paragraph 39 above). However, there is nothing in the Utena court decision of 27 April 2011 to suggest that the State-appointed lawyer ever passed that information on to the court. On the contrary, the State-appointed lawyer was yet another person ‒ together with the bailiff ‒ who addressed the matter only formally and concentrated on the visit of December 2010 which did not take place, but made no mentioning of the visit of September 2010, for which the applicant had paid for the travel costs, notwithstanding having been informed that the applicant had transferred GBP 600 for that purpose. The Court further observes that once the applicant had learned about the decision of 27 April 2011, he asked the lawyer to appeal against it. However, there is no evidence to show that the lawyer complied with that request (see paragraph 41 above). The Government have not argued that either.
Consequently, the Court dismisses the Government’s plea of non-exhaustion of domestic remedies.
115. Lastly, the Court notes the Government’s argument that the applicant has not visited his son since 2010 July, which in their view was a testament to the applicant’s lack of serious interest in his son. Be that as it may, the applicant’s genuine and serious interest in his son was unequivocally noted by the HCJ in its judgment of 28 April 2010 (see paragraph 15 above). The HCJ also emphasised that there had been two important reasons why the contact between the applicant and his son had been scheduled to take place in England, namely the absence of the pressures the applicant would undoubtedly feel in Lithuania and the fact that the preferred timing was “clearly as soon as possible” (see paragraphs 16 and 17 above). The rules set out by the Utena District Court however are in clear contrast to the guidance laid down by the HCJ. According to the Lithuanian court’s decision of 1 March 2011, the applicant was permitted to see his son in the presence of the child care authorities and on their premises (see paragraph 49 above). Concerning the rules set out by the Utena District Court on 26 June 2012, they were even less favourable for the applicant, because V.T. was to be present during those meetings. V.T. also retained the right to decide whether a particular place was appropriate for those meetings (see paragraph 58 above).
116. At this juncture it is also noteworthy that on 28 April 2010 the HCJ held that a very significant change would be necessary for any revisiting of the contact plan as set out by it (see paragraph 18 above). Looking at the facts of the case, the Court does not see any such significant change, except for V.T.’s hostility towards the applicant. Indeed, she refused to take their child to London in September 2010 and lodged a petition to change the contact order almost as soon as the three-month time-limit set out in Article 9 of the Council Regulation (EC) No. 2201/2003 had expired (see paragraph 43 above). Moreover, even though in support of her request V.T. had provided the Utena District Court with medical reports, that evidence is not even mentioned in its decisions of 1 March 2011 or 27 April 2011 (see, by converse implication, Z.J. v. Lithuania, cited above, § 103). In fact, on 26 June 2012 the Utena District Court rejected V.T.’s argument that the child’s state of health had worsened mostly due to his contact with his father (see paragraph 57 above).
117. In the light of the foregoing, and also taking into account the applicant’s inability to obtain prompt and informative responses when communicating with the bailiff, who is a State official, and the State-appointed lawyer, both of whom were to act in good faith for the benefit of the applicant (see paragraphs 71 and 72 above; also see, mutatis mutandis, Plesó v. Hungary, cited above), as well as a certain lack of information from the Utena District Court about the proceedings that concerned him directly, it was to an extent legitimate for the applicant to feel that his interests had been neglected in Lithuania, which might explain his unwillingness to go there later. From the above considerations it also transpires that the applicant’s contact with his son so that the boy would get to know his father “in the father’s own environment” (see paragraph 16 above) was prevented by the Lithuanian authorities at precisely the initial stage when it was most important. The Court therefore considers that what happened after the Utena court decisions of 1 March and 27 April 2011 could not remedy the applicant’s situation sufficiently satisfactorily.
118. In the light of the foregoing, the Court cannot but conclude that in this particular case the authorities failed in their responsibilities to duly protect the applicant’s right to respect for his family life.
There has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
119. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
120. The applicant claimed 60,000 pounds sterling (GPB) in respect of non-pecuniary damage.
121. The Government contested the claim as unjustified and excessive. They stated that the requested compensation for non-pecuniary damage did not correspond to the Court’s case law in similar cases and substantially exceeded the compensation awarded in the cases against Lithuania for a violation of Article 8.
122. The Court, making an assessment on an equitable basis, considers it appropriate to grant 7,000 euros (EUR) to the applicant in respect of non-pecuniary damage.
B. Costs and expenses
123. The applicant also claimed GPB 6,568 for the costs and expenses incurred before the domestic courts and before the Court. This sum included GPB 39 for the telephone calls to the Lithuanian bailiff and lawyer, GPB 247 for the postal costs, including DHL, GPB 6,042 for the legal representation before the Court, GPB 200 for the translation of the Court’s judgment in Lafargue (cited above), and GPB 40 for the bailiff’s fee.
124. The Government submitted that some expenses, such as the translation of the Court’s judgment in Lafargue case, had not been necessary. Other expenses, such as the lawyer’s fee, were excessive.
125. The Court notes that the applicant had the benefit of legal aid from the Council of Europe for his representation in the total amount of EUR 850 (approximately GPB 675) in the present case. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads.
C. Default interest
126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins, by a majority, to the merits the Government’s objection as to the exhaustion of domestic remedies, and dismisses it;
2. Declares, by a majority, the application admissible;
3. Holds, by five votes to two, that there has been a violation of Article 8 of the Convention;
4. Holds, by five votes to two,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into pounds sterling (GBP) at the rate applicable at the date of settlement, plus any tax that may be chargeable:
(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Spano and Kjřlbro is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES SPANO AND KJŘLBRO
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.