European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

 

CASE OF K.B. AND OTHERS v. CROATIA

 

(Application no. 36216/13)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

14 March 2017

 

 

 

 

 

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 K.B. and others v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Nebojša Vučinić,
          Paul Lemmens,
          Valeriu Griţco,
          Ksenija Turković,
          Stéphanie Mourou-Vikström,
          Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 February 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 36216/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms K.B. (“the applicant”) on her own behalf and on behalf of her two underage sons, D.B. and P.B. (“the children”), all Croatian nationals, on 22 May 2013. The President of the Section acceded to the applicant’s request not to have her and the children’s names disclosed (Rule 47 § 4 of the Rules of Court).

2.  The applicant was represented, first by Ms L. Kušan, an advocate practising in Ivanić-Grad, and subsequently by Ms N. Owens from the law firm Owens and Houška, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant alleged that the State had failed to fulfil its positive obligations to facilitate contact between her and her children and had thereby violated her and her sons’ right to respect for their family life.

4.  On 23 September 2013 the applicant’s complaints concerning the right to respect for family life and the lack of domestic remedies in that respect were communicated to the Government; the remainder of the application was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1968 and her two sons in 2001 (D.B.) and 2005 (P.B.), respectively. The applicant lives in I.; the children live with their father, I.B., in S.

6.  In 2002 the applicant married I.B. In the period between 2002 and March 2009 the family lived together in their home in S., a small town located on the central Dalmatian coast, north-west of the town of Split.

7.  On 24 March 2009 the applicant contacted the Split Social Welfare Centre (Centar za socijalnu skrb Split) and expressed fear for her life and the lives of the children. She claimed that her husband had been mentally and verbally abusing her and the children for years, and had lately become unbearable.

8.   The Split Social Welfare Centre immediately informed the police of the alleged abuse and of its intention to take child protection measures envisaged by the Family Act. On the same day the police interviewed the applicant, who stated that her husband was suffering from post-traumatic stress disorder and alcoholism. She reiterated that he had been abusing her and the children mentally and verbally but not physically.

9.  On 25 March 2009 the applicant and the children moved from S. and went to live with the applicant’s parents in I., a municipality in central Croatia near Ivanić-Grad. These two places are 426 kilometres apart.[1]

10.  In the period between 8 and 20 April 2009 the police interviewed I.B., the children’s paediatrician, and employees of the younger son’s kindergarten and the older son’s school. I.B. denied any abuse and complained that the applicant’s parents did not allow him any contact with the children. The paediatrician confirmed that I.B. had in 2002 and 2003 been treated for post-traumatic stress disorder but that she, like the other persons interviewed by the police, had not noticed any signs of abuse within the family.

11.  On 24 April 2009 the police authorities submitted a report on the alleged abuse in the applicants’ family to the relevant State Attorney’s Office, which eventually, on 22 February 2011, found that no criminal offence had been committed.

12.  On 1 July 2009 the applicant was admitted to a psychiatric hospital, where she stayed until 9 August 2009, when she was released. She was diagnosed as suffering from severe anxiety and depression caused by her current family situation.

13.  Since April 2009 several consecutive sets of proceedings have been conducted before judicial authorities concerning custody and contact arrangements regarding the applicant’s children. Ivanić-Grad or Split Social Welfare Centre participated in each of those proceedings as an independent intervener sui generis with a view to protecting the children’s interests. The facts set out below give a detailed account of those proceedings, measures undertaken by the welfare authorities, and the surrounding circumstances.

A.  Divorce and custody proceedings and the concurrent proceedings concerning I.B.’s contact rights

1.  Proceedings concerning I.B.’s contact rights

14.  On 4 June 2009 I.B. instituted non-contentious proceedings (izvanparnični postupak) against the applicant in the Ivanić-Grad Municipal Court (Općinski sud u Ivanić-Gradu) in order to regulate his contact rights in respect of the children.

15.  On 30 July 2009 the Ivanić-Grad Social Welfare Centre (Centar za socijalnu skrb Ivanić-Grad), having interviewed the applicant and the children, submitted its report and recommendations. The report suggested that the children had expressed negative emotions towards their father and fear of corporal punishment by him. The relevant part of that report reads as follows:

“By psychological evaluation of the [older son] it was established that the boy is very emotionally burdened by the family situation. [He] is anxious and upset at the mention of the father and the possible [re-establishment of] contact with him. He expresses fear of the father because he does not know how the father would behave. He stated that he likes it in I. because before he was afraid and had to listen to the parents fighting. He also states that he does not want to spend summer holidays with the father but that he is fine with telephone contact with him. The boy is very emotionally attached to the mother.

The psychologist’s interview with the children of 28 July 2009 ... suggests that both children indicate that they do not want to go to their father, [and the older son] shows that he is mentally and emotionally very burdened by the family situation and his relationship with the father. The child is very anxious and upset when the issue of going to the father is mentioned, [as evidenced by his] emotional reaction. In particular, [the older son] started crying on several occasions [while] expressing negative emotions against the father, primarily a fear ... of corporal punishment. [He] says that he does not want to go to the father because he does not want the father to beat him as he used to, on the head and on the back, which [the younger son] confirms. He agrees to the father coming to I. to visit them on weekends and to have contact with him by telephone.”

In view of the applicant’s hospitalisation (see paragraph 12 above), the Centre recommended that the children be temporarily placed in the care of their maternal grandparents, that the father be granted contact rights, to be exercised every second weekend in I. and that the children be referred to the Polyclinic for the Protection of Children in Zagreb for treatment in order for them to overcome their emotional difficulties.

16.  By a decision of 31 July 2009 the Ivanić-Grad Municipal Court:

- decided to temporarily, until 1 December 2009, place the children in the care of their maternal grandparents;

- awarded I.B. contact rights, to be exercised every Saturday between 9 a.m. and 7 p.m.;

- ordered a combined psychological and psychiatric evaluation of the applicant and I.B.

17.  On 3 February 2010 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) dismissed an appeal by I.B. and upheld that decision.

18.  In their combined expert opinion of 29 October 2009 the appointed forensic experts in psychology and psychiatry stated, inter alia, that both the applicant and I.B. had certain shortcomings, which, however, did not disqualify them as parents. The experts recommended that custody be awarded to the applicant because that would be less painful for the children. They explained that in the given circumstances separating the children from their mother and their having to adapt again to a new environment would be a traumatic experience for them. The experts also noted that the entire family, and especially the parents, needed professional assistance in overcoming their emotional difficulties

19.  By a decision of 27 November 2009 the Ivanić-Grad Municipal Court:

- temporarily deprived I.B. of custody of the children until 28 June 2010 or the adoption of a final decision in the concurrent divorce and custody proceedings (see paragraphs 22-53 below);

- temporarily awarded custody to the applicant;

- awarded I.B. contact rights, to be exercised in I. every Saturday between 9 a.m. and 7 p.m.;

20.  On 3 March 2010 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) allowed an appeal by I.B., quashed that decision, and remitted the case.

21.  In the resumed proceedings, on 15 April 2010 I.B. informed the Ivanić-Grad Municipal Court that he no longer wished to pursue the case, whereupon, by a decision of 16 April 2010, the Ivanić-Grad Municipal Court discontinued the proceedings.

2.  Divorce and custody proceedings

22.  Meanwhile, on 30 April 2009 the applicant brought a civil action against I.B. in the same court, seeking a divorce and custody of the children. In his response I.B. opposed a divorce and proposed that he be awarded custody of the children.

23.  By a decision of 27 May 2009 the Ivanić-Grad Municipal Court ruled that it had no territorial jurisdiction in the matter and on 7 July 2009 it transferred the case to the Split Municipal Court (Općinski sud u Splitu).

24.  On 3 September 2009 the Split Municipal Court referred the applicant and her husband to the Split Social Welfare Centre for the mandatory mediation procedure before divorce.

25.  On 19 October 2009 the Split Social Welfare Centre submitted its report and recommendation, stating that reconciliation between the spouses was not possible because their relationship was deeply strained. As regards the issue of custody of their children, the Centre recommended a psychiatric evaluation of the parents in order to determine their parenting capacities.

26.  At the hearing held on 24 March 2010 the court decided to order a combined expert opinion from forensic experts in psychology and psychiatry.

27.  On 10 May 2010 the experts submitted their opinion, which was based on a psychiatric and psychological evaluation of the applicant and I.B. and a psychological evaluation of the children. The experts established that:

- both parents were suitable for custody;

- their parenting capacities had certain shortcomings, which was why they needed the assistance of welfare authorities in the form of supervision of the exercise of parental authority, counselling and, possibly, enrolment in a parenting school;

- the children were more attached to the mother, who was at that time more available to meet their needs,

- the children wished to remain living with their mother.

The experts recommended:

- that weight be given to the children’s wishes and custody be awarded to the mother,

- that the father be granted extensive contact rights, to be exercised in I., initially every second Saturday, and later over one whole weekend per month, as well as every second public holiday, half of the winter holidays and the entire summer holidays (July and August),

- that the child protection measure of supervision of the exercise of parental authority be imposed (nadzor nad izvršavanjem roditeljske skrbi).

28.  I.B. objected to those findings in the written submission that he submitted on 8 June 2010. The applicant did not object.

29.  At a hearing held on 18 June 2010 I.B., relying on the above-mentioned expert opinion (see paragraph 27 above), asked the court to order a provisional measure allowing him to spend the upcoming summer holidays with the children at his home in S. The representative of the Split Social Welfare Centre who attended the hearing endorsed this request.

30.  By a decision of the same day the court allowed the request and issued a provisional measure whereby it ordered that the children were to stay with their father in S. from 1 July 2010 until 30 August 2010. During that period the applicant was granted contact rights, to be exercised every second Saturday from 10 a.m. until 8 p.m. at I.B.’s home, and every day by phone.

31.  On 28 June 2010 the applicant appealed against that decision. She had nothing against the children staying with their father during the summer but complained about the impracticability of the contact arrangements, in particular of having to exercise her contact rights during that period in I.B.’s home, which for her was both objectionable for psychological reasons, given the animosity between her and her husband, and costly, as it entailed her having to travel to S.

32.  The applicant’s appeal was only dismissed by the Split County Court (Županijski sud u Splitu) on 20 May 2011. The relevant part of that decision reads as follows:

“The first-instance court adopted the provisional measure relying on [the relevant provisions of] the Enforcement Act and the Family Act after having established that the adoption of that measure was not contrary to the children’s best interests. Since those interests were not called into question by the arguments raised by the appellant in her appeal, and given that in the proceedings leading to the adoption of the decision [on the provisional measure] there were no serious breaches of procedure ... the appellant’s appeal had to be dismissed and the contested decision upheld.”

33.  Meanwhile, in a report of 30 June 2010 the Ivanić-Grad Social Welfare Centre (Centar za socijalnu skrb Ivanić-Grad) informed the Split Municipal Court of the measures taken to prepare the children for their stay with their father during the summer holidays, as ordered under the measure of 18 June 2010 (see paragraph 30 above). It noted that the younger son wanted to go to S. and spend time with their father whereas the older one resisted that and preferred that their father come to I.. The Centre therefore recommended that implementing the provisional measure in respect of the younger child would be in his interests whereas implementing the measure by force against the older one would not be in that child’s interests.

34.  It would appear that the older son eventually agreed to spend the summer holidays with his father in S.

35.  During the children’s stay with their father in July and August 2010 the applicant did not come to visit them. She however maintained regular telephone contact with them, which became less frequent in August because the children grew reluctant to speak with her.

36.  On 10 August 2010 I.B. asked the Municipal Court to issue a provisional measure and to temporarily award him custody of the children until the final conclusion of the divorce and custody proceedings.

37.  In support of his request, on 27 August 2010 I.B. submitted an opinion of a clinical psychiatrist, Dr J.Š., who had interviewed the children, suggesting that the circumstances had changed in that the children now wanted to continue living with their father and firmly refused to go back to their mother in I. The opinion also stated that both parents had limited parenting capacities but were equally suitable to be awarded custody and that they had both been manipulating the children, who needed psychological assistance.

38.  On 30 August 2010 I.B. did not hand the children over to the applicant, but kept them in S.

39.  In their opinions of 1 and 10 September 2010 submitted to the Split Municipal Court the Split and Ivanić-Grad Social Welfare Centres respectively suggested that the experts’ recommendations made in the opinion of 10 May 2010 (see paragraph 27 above) be followed and the children returned to the applicant in I. In view of the children’s recent resistance to returning to their mother’s home, the Split Welfare Centre also proposed that a supplementary expert opinion be obtained from the same experts.

40.  On 13 September 2010 the Split Municipal Court made an enforcement order whereby it ordered I.B. to hand over the children to the applicant. Following an appeal by I.B., that order was quashed by the Split County Court on 20 May 2011. The County Court noted that, apart from the provisional measure of 18 June 2010 regulating custody and contact rights during the summer holidays of 2010, the Municipal Court had not issued any other decision temporarily regulating those issues for the duration of the divorce and custody proceedings. That meant that until the judgment on custody became final the parents were to exercise joint custody and could not enforce their respective custody rights against each other as they both had the right to have the children living with them.

41.  At the hearing held on 17 September 2010 the Municipal Court heard the two experts who had prepared the opinion of 10 May 2010 (see paragraph 27 above). They noted that the new circumstances (the children’s resistance to returning to I.) were indeed important but stood by their opinion. They were also against the Split Welfare Centre’s proposal to obtain a supplementary expert opinion, as another expert assessment would traumatise the children further, such an opinion would be incomplete, and it would be difficult to determine the boys’ true wishes. If the court were nevertheless to decide to obtain such an opinion they suggested that the task be assigned to an expert institution in Zagreb.

42.  After the hearing the applicant tried to meet the children at their father’s home in S. However, the children refused to meet her and were crying and hiding from her.

43.  On 28 September 2010 I.B. submitted to the court another opinion of the psychiatrist, Dr J.Š. (see paragraph 37 above), dated 23 September 2010, which stated that:

- the children needed psychological assistance, to which the father agreed (he had started taking them to therapy);

- the father had been advised to encourage the children to have contact with the mother;

- the children were refusing contact not because they did not love their mother but because they were afraid she would take them to I.;

- the supplementary expert opinion proposed by the Split Social Welfare Centre (see paragraph 39 above) should determine (a) in what way the parents had been manipulating the children, (b) what kind of impact returning to I. would have on the children’s emotional health, and (c) the long-term consequences of either potential decision on custody.

44.  The applicant did not attend the hearing on 5 November 2010 at which the court decided to hear as witnesses at the next hearing scheduled for 1 February 2011 the older son’s school teacher and school pedagogue, the younger son’s kindergarten teacher, and the psychiatrist, Dr J.Š.

45.  On 24 January 2011 I.B. submitted to the court yet another opinion of Dr J.Š., dated 11 January 2011, which stated that the proceedings should end as soon as possible because they were traumatising for the children, who lived in a constant state of fear and uncertainty regarding their potential return to I. In her view, without addressing the causes of the children’s refusal to return to their mother, returning them to I. would be impossible and contrary to their emotional well-being and their best interests.

46.  At the hearing held on 1 February 2011 the court heard evidence from Dr J.Š., who stated that:

- the separation of the parents entailed a potential change of the children’s residence, which was very traumatising for the children;

- for the children it was more important where they would live than with which parent; they loved their mother but refused to live in I.;

- the boys had sustained serious emotional harm and it was impossible to return them to I. without consequences;

- the boys were refusing to have contact with the mother and were very likely inventing stories that they had been beaten by her and their maternal grandparents (see paragraph 15 above) only because they were afraid that she would take them back to I. (the older boy was saying that he would hide, run away or kill himself).

She recommended that the children continue to live with the father, have unhindered contact with the mother and undergo psychotherapy because they had suffered serious emotional harm.

47.  At the end of the hearing the court decided to obtain an opinion from a forensic expert in psychiatry, Dr N.S. from Split. During the hearing and later, in her submissions of 14 and 28 February 2011, the applicant objected to that decision because the court had:

- appointed a single expert (in psychiatry), whereas a combined opinion from experts in psychology and psychiatry had been warranted;

- appointed an expert from Split rather than experts from Zagreb, contrary to the recommendation of the earlier experts in the case (see paragraph 41 above), which had also been costly for her as it had entailed her having to travel to Split;

- not ordered an expert evaluation of the children.

48.  On 9 March 2011 the expert, Dr N.S., submitted his opinion. The opinion was based on a psychiatric evaluation of I.B. but not of the applicant because she had refused to come to Split to undergo a psychiatric evaluation by the expert. The expert stated that:

- he could not assess which parent was more fit to be awarded custody of the children because the applicant had refused to undergo a psychiatric evaluation; and

- there were no signs indicating that I.B. was unfit to be awarded custody.

49.  Before the hearing held on 7 April 2011 the applicant tried to meet the older son in his school. However, after the boys’ teacher had told him that his mother was looking for him, he left the school building.

50.  At the hearing held on 7 April 2011 the court heard the applicant and forensic expert Dr N.S., who confirmed that he had not interviewed the children, whereupon the court closed the main hearing and delivered a judgment. By that judgment the Split Municipal Court:

- dissolved the marriage between the applicant and I.B.;

- awarded custody of the children to I.B.; and

- granted the applicant contact rights, to be exercised every second weekend in I., from Friday evening until Sunday afternoon so that the father could bring the children to her in I. and she could return them to him in S.

51.  Since the parties waived their right of appeal the judgment immediately became final.

52.  By a decision of 30 May 2011, the Split Social Welfare Centre ordered the child protection measure of supervision of the exercise of parental authority in the family (see section 110 of the Family Act, cited in paragraph 101 below). It prepared a programme of supervision and conferred regarding the supervision with a certain N.Đ. (hereafter “the supervising officer”), a psychologist and social worker. The decision stated that the measure was primarily aimed at establishing unhindered contacts between the children and the applicant.

53.  Bi-monthly reports prepared by the supervising officer (who has been visiting the children at their father’s home twice a month) and various documents prepared by the Split Social Welfare Centre since 30 May 2011 suggest that only on a few occasions was the applicant able to see the children, not in I., but in S., and then only from a distance and for a very short time. In particular, those documents suggest that the applicant saw the children in that manner on 18 August 2011, 21 May and 1 December 2012, 2 May and 29 June 2013, and on 24 March 2014 (see paragraphs 56, 66, 71, 75, 78 and 82 below). Each time the children vehemently resisted the meeting, and were angry and behaved aggressively towards her. They also resisted telephone contact with their mother. The supervising officer also noted that even with her the children categorically refused to talk about their mother.

B.  Enforcement proceedings

54.  On 30 June 2011 the applicant applied to the Split Municipal Court for enforcement of that court’s judgment of 7 April 2011 (see paragraph 50 above), that is to say she sought enforcement of her contact rights to be exercised in I.

55.  At a hearing held on 18 August 2011 the enforcement court heard the parties. I.B. explained that he had several times tried to take the children to their mother to I. but had been faced with their very strong resistance. He stated that the older son had told him: “You can kick me in the head and put me in the boot [of your car] but I will escape during the trip” and “Dad, if you keep pressuring us, don’t be surprised if one day I do not return home”. In I.B.’s opinion the children had behaved in this way because they had been beaten by the applicant and their maternal grandparents while they had been living in I. (see paragraph 9 and 15 above). He also submitted that he had acted in accordance with the instructions of the supervising officer, who had advised him against forcing the children to go and visit the applicant against their will.

56.  After the hearing the applicant tried to meet the children at their father’s home. The older son refused to see her and locked himself in his room. The younger son was playing outdoors, so the applicant managed to see him but the meeting was brief and superficial.

57.  Together with his submissions of 24 August 2011 I.B. enclosed an opinion of the psychiatrist Dr J.Š., dated 22 August 2011. The opinion suggested that the children had developed strong resistance towards the mother (to which both parents had subconsciously contributed) and that forcing them to go to I. would likely cause them psychological harm. On the other hand, the therapist stated that contact with the mother should be established as soon as possible, in the presence of an employee of the Split Social Welfare Centre and in the father’s absence.

58.  At the hearing held on 11 October 2011, the enforcement court heard the supervising officer, who testified that the children were not ready to meet the applicant. They had resisted seeing her and were even refusing to talk about her. She also stated that, in her view, their behaviour was not the result of their father’s influence. When asked whether visits to Dr J.Š. could prepare the children for meetings with their mother, she replied affirmatively but added that Dr J.Š. was a psychiatrist and that it would perhaps be better to take the children to a child psychologist.

59.  By a decision of 28 December 2011 the Split Municipal Court dismissed the applicant’s application for enforcement. Relying on the supervising officer’s testimony and the opinion of psychiatrist Dr J.Š. (see paragraphs 57-58 above), the court found that I.B. had not been obstructing the exercise of the applicant’s contact rights, which remained unenforced exclusively because of the children’s strong resistance. The applicant did not appeal against that decision.

C.  Proceedings concerning new contact arrangements

1.  The first set of proceedings

60.  On 9 December 2011 the applicant instituted proceedings in the Split Municipal Court seeking a change in the contact arrangements.

61.  The court held hearings on 20 March, 21 May, 17 July and 6 August 2012.

62.  At the hearing held on 20 March 2012 the parties agreed that the contacts between the applicant and the children should in the future take place in S. on the premises of the Split Social Welfare Centre. At the same hearing the court ordered the Split Social Welfare Centre to conduct a thorough examination of both parents and the children. After the hearing the parties tried to organise contact between the applicant and the children in the manner agreed at the hearing but the children refused to come to the meeting.

 63.  On 2 May 2012 I.B. informed the court that, at the suggestion of the supervising officer, he had on 27 April 2012 taken the children to the Split Polyclinic for Rehabilitation of Persons with Disabilities (Department of Child and Adolescent Psychiatry), where a psychologist had made an initial assessment and recommended that the children undergo psychotherapy. It would appear that soon afterwards I.B. started taking the children for regular treatment to Dr D.B., a psychiatrist from that polyclinic, with a view to overcoming their emotional and psychological difficulties and easing their resistance towards their mother.

64.  At the hearing held on 21 May 2012 the court heard the supervising officer. The relevant part of her statement reads:

“The children refuse any cooperation and show resistance towards their mother, the strongest I have seen in my twenty-nine years of experience. At the mere mention of the mother, [the older son] starts to scream and shout and [the younger one] follows his brother’s example. ... [I]n a situation like this, one needs to work with the children, as otherwise they will turn into mentally unstable persons ... Before, there was at least some telephone contact between the mother and the children; now the children do not want to speak to her.

... [T]he mother has so far done everything she can, that is to say she has been calling, asking about the children. In my experience, there is nothing she can do in the present situation.

In order to overcome this situation I have been instructing the father and advised him to encourage the children to accept the mother, to speak positively of [her]. When talking to me he cooperates and takes on board all my advice, but I do not know which [part of it he accepts], and how he implements it. In the beginning, when I commenced supervision ... I could talk to the children, but they are now firm and resolute in their stance ... In order to achieve any progress in this situation the children must be under constant treatment, and I also think that the parents need expert assistance in overcoming their [issues]. I also have to say that that I asked [the father] at the beginning of the supervision to visit the Family Centre and seek help there. I do not know if he did it.”

65.  At the same hearing the court decided to obtain an opinion and recommendation from the Split Social Welfare Centre. In so doing the court stated:

“The Court would draw the attention of [the Social Welfare Centre’s] expert ... team to the need for the children to undergo therapy and treatment, and the need for the parents to be advised as to how to resolve their relationship and to have clearly defined limits as to what to do and how in this situation ...”

66.  After the hearing the applicant again tried to meet the children at their father’s home. The children refused to leave the house and closed the shutters. An employee of the Split Social Welfare Centre who was accompanying the applicant went into the house to talk to the children alone. The older son cried, refused to see the applicant and stated that he wanted her to leave. The younger son also refused to see and talk to the applicant, even for a short while. Eventually, the children came to the doorway just to tell the applicant that they did not want to see her, and then locked themselves in the house.

67.  On 12 June 2012 the Split Social Welfare Centre submitted its report and recommendation. Bearing in mind the risks involved in meetings held without expert supervision and the necessity to gradually re-establish contact between the applicant and her children, the Centre recommended contact once a month in S. under the supervision of the supervising officer. Although the Centre was ready to organise meetings on its premises, it advised against it because the children had refused such an arrangement in the past. Instead, it proposed that the meetings take place elsewhere outside the father’s home, for example in a park or a playroom. The relevant part of the report reads as follows:

“Since the beginning of the implementation of the supervision measure the children have not had regular contact with the mother. Both boys have been openly resisting meeting the mother ... by complaining, refusing, crying, and expressing anger and fear of the mother. This is confirmed by all reports of the supervising officer, psychiatrists’ reports and the psychologist’s report dated 27 April 2012.

The recommendations of the specialist, the expert ... team and the supervising officer are to provide the children with psychological support with a view to processing difficult emotions related to the situation in the family and their relationship with the parents. Even though in the context of the supervision measure the children are provided with counselling at which topics related to the parents and contact with the mother are discussed, this has not brought positive results in the sense of significant changes in the children[‘s behaviour]. It is therefore necessary to involve the children in psychotherapy. The father was therefore instructed to visit the Split Polyclinic for Rehabilitation of Persons with Disabilities, an expert team of the Department of Child and Adolescent Psychiatry. The father accepted this, and the treatment at the Polyclinic commenced in April 2012.

Taking into account primarily the interests of the children, we are of the opinion that contact with the mother has to be regulated gradually, by following the children’s emotional capacities, the course of the psychotherapy, [etc.] ...

...

It is to be noted that any involvement of children in conflict between parents ... inevitably has harmful consequences for their development. Denial of free and regular contact between a parent and a child is the most common ... way of inflicting suffering on a child. To demand from a child that it choose between the parents constitutes violence against the existentially determined loyalty to both parents. Influencing the child [in such a way that he or she] has a bad opinion of the other parent will generally worsen that child’s opinion of himself or herself. [Exercising force towards] children in any way necessarily has harmful consequences for their emotional development. Both parents have been informed of this [and] advised [accordingly] ... Through their appropriate behaviour and relationship parents have the power on their own to help their child to overcome the crisis and continue his or her development without harmful consequences. In circumstances where the parents do not have sufficient capacity [to do so] professional assistance should be sought for the children.

...

Only with professional assistance and by establishing a minimal level of cooperation between the parents may one expect to establish unhindered contact between the mother and the children. In the current circumstances we are of the opinion that contact should be established gradually, by the mother visiting the children, at their place of residence, the last weekend in every month, on Saturdays from 3 a.m. to 7 p.m., and on Sundays from 11 a.m. to 3 p.m. It is suggested that contact take place in the presence of the supervising officer, N.Đ. ... who undertakes to coordinate between the parents the place [of the meetings] and the manner of collecting and returning the children. In addition, it is necessary to follow the course of the children’s psychiatric treatment and to respect the recommendations, instructions and opinions of the psychotherapist.

Once contact between the mother and the children is established, the times of their contact may be extended and could include holidays.”

68.  In her opinion of 17 July 2012 the psychiatrist Dr D.B. (see paragraph 63 above) stated that during the first two therapy sessions she could not gain the children’s trust, and that they perceived any contact with their mother as a threat to the current state of affairs and as bringing a change they could not accept.

69.  By a decision of 6 August 2012 the Split Municipal Court ordered that contact between the applicant and her children was to take place on the last weekend of every month, specifically on Saturday from 3 p.m. to 7 p.m. and on Sunday from 11 a.m. to 3 p.m., under the supervising officer’s supervision. It refused the applicant’s request to be allowed to spend two weeks in August 2012 with her sons. In so deciding, the Municipal Court relied on the opinion and recommendation of the Split Social Welfare Centre (see paragraph 67 above).

70.  In an opinion dated 10 September 2012 the psychiatrist, Dr D.B., stated that the older child was refusing to cooperate during therapy sessions and that he was crying and saying that he wanted to go home and felt that his rights were being violated.

71.  On 1 December 2012 the applicant again attempted to meet the children at their home. The children again refused to meet her and did not even approach her. The older son was crying, was verbally aggressive and told her that he did not want her and that she should go away. The younger son ran away from her and told her that he did not want to go to her.

72.  On 10 January 2013 the Split County Court dismissed an appeal by the applicant against the first-instance decision of 6 August 2012 (see paragraph 69 above).

73.  It would appear that in March 2013 I.B. stopped (regularly) taking the children for therapy to Dr D.B. (see paragraph 63 above).

74.  On 2 May 2013 the applicant met in person with Dr D.B., who suggested discontinuing the treatment because the children cried during the therapy sessions and she could not achieve anything.

75.  On the same day the applicant again tried to meet the children at their home. The children yet again refused to meet her.

2.  The second set of proceedings

76.  On 13 June 2013 the applicant instituted another set of proceedings before the Split Municipal Court, seeking a change in the contact arrangements.

77.  On 26 June 2013 the court invited the Ivanić-Grad and Split Social Welfare Centres to make a psychological evaluation of the family and to submit a joint opinion and recommendation. The centres nevertheless submitted separate opinions on 26 July and 11 September 2013 respectively. The report of the Split Social Welfare stated that the children had refused to come to the Centre’s premises for psychological evaluation, so the Centre’s psychologist had visited their home. During the interview the children had avoided talking about the contact with their mother and had expressed their anger and discontent. Since, despite the supervision measure and psychiatric treatment, the children had continued to refuse to see their mother, the Centre recommended obtaining an opinion from an expert in psychiatry with a view to determining the causes of their behaviour.

78.  On 29 June 2013 the applicant went to visit the children, who again refused to see her. The older son was shouting and cursing at her, telling her to go home and that he did not need her.

79.  In her report of 19 September 2013 the psychiatrist Dr D.B., who was treating the children, informed the Split Social Welfare Centre that in her opinion continuing their psychiatric treatment would be counterproductive because the children had been resisting it, had not been cooperating and had engaged in strongly negative emotional outbursts during therapy sessions. It would appear that the treatment nevertheless continued upon the intervention of the supervising officer and the Split Social Welfare Centre. The therapy session of 14 January 2014 was attended by an employee of the Split Social Welfare Centre, who explained to Dr D.B. that the main goal of the therapy was to facilitate the children’s contact with their mother. However, Dr D.B.’s and the Split Social Welfare Centre’s reports of 11 March 2014 suggested that no progress had been made, despite the continuation of the treatment. The report of the supervising officer dated February 2014 suggested that the children had been refusing psychotherapy or to participate in any other activity (such as going to the Social Welfare Centre) which entailed talking about their mother.

80.  Meanwhile, at a hearing held on 11 November 2013 the Split Municipal Court heard the parties and the representative of the Split Social Welfare Centre and decided to obtain a combined opinion from forensic experts in psychology and psychiatry with a view to determining the causes of the children’s refusal to have contact with their mother. It appointed the same experts who had prepared the opinion of 10 May 2010 (see paragraph 27 above).

81.  In the period between 20 and 24 March 2014 the Split Social Welfare Centre unsuccessfully tried to organise a meeting between the applicant and the children at Dr D.B.’s office. For that purpose the Centre’s officials visited the children’s home and explained to them that their mother did not want to take them away from their father but that she just wanted to see them. The children were nevertheless very upset and angry. On the same occasion the father was advised to encourage the children to have contact with the mother and to continue their therapy, either with Dr D.B. or with a different therapist.

82.  On 24 March 2014 the applicant intercepted her younger son on his way back from school. She asked him to stop and talk to her, at which point he ran away from her, upset and in tears.

83.  On 7 April 2014 the Split Social Welfare Centre filed a criminal complaint against I.B. with the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) accusing him of - by not taking the children regularly to Dr D.B. for psychotherapy - committing the criminal offence of non-execution of a child protection measure, as defined in Article 173 of the Criminal Code (see paragraph 106 below).

84.  On 3 June 2014, having consulted the documents in the case file, the court-appointed experts (see paragraph 80 above) in a joint letter asked the court to exempt them from the role of experts in the case. They criticised the way the judicial and welfare authorities and various experts had handled the situation in the applicant’s family since they had delivered their previous expert opinion of 10 May 2010 (see paragraph 27 above). In particular, they:

- stated that the children had been manipulated by their father and that their refusal to have any contact with their mother was completely irrational and resulted from the conflict of loyalties they had been drawn into;

- criticised the opinions of Dr J.Š., who in their view had (a) failed to adequately explain the radical change in the children’s behaviour after they had spent the summer holidays of 2010 with their father, (b) failed to recognise that change as an obvious symptom of the children’s conflict of loyalties, and (c) recommended that the children’s wish to continue to live with their father be respected (see paragraphs 45-46 above), thus ignoring their long-term interests;

- pointed out that the judicial authorities had ignored the Split Social Welfare Centre’s recommendation of 1 September 2010 that a supplementary expert opinion be obtained from them (as the experts who had on 10 May 2010 prepared the earlier opinion in the case - see paragraphs 27 and 39 above) and, instead of ordering a combined (psychiatric and psychological) evaluation of both parents and the children by a clinic in Zagreb, had only ordered a psychiatric evaluation of the parents by an expert from Split (see paragraphs 47-48 above).

The experts concluded:

“... Given that [we] had already made an expert evaluation of the family and in May 2010 submitted [our] opinion to the court, which was, to the detriment of the children, not accepted, we ask the court to accept our request for exemption.

... [We] cannot disregard the fact that the children are being forced to choose for themselves whether they want to have contact with their mother or not - a developmentally inappropriate task [for them] - and that, even though the father verbally does not oppose the contact, non-verbally and by his behaviour he sends them the opposite message, thereby bringing them into a severe conflict of loyalties where they have a feeling that they are betraying their father if they show that they care about their mother. This has been causing harm to the healthy socio-emotional development of both children, which would be difficult to repair. Having regard to the foregoing, we suggest that a new, impartial expert assessment be ordered from the Polyclinic for the Protection of Children of the City of Zagreb, which [we] already proposed at the hearing held on 17 September 2010.”

85.  On 20 November 2014 I.B. started undergoing counselling by a psychologist at the newly-opened Kaštela Family Counselling Centre. Furthermore, on 4 December 2014 he also started taking the children to counselling at the same institution. It would appear that from then on the children have been regularly attending family therapy there once a week, although I.B. stopped attending counselling at some point before May 2016. The Split Social Welfare Centre has been regularly asking the Kaštela Family Counselling Centre for information about the progress of the children’s counselling.

86.  By a decision of 31 December 2014 the Split Municipal State Attorney’s Office dismissed the criminal complaint against I.B. (see paragraph 83 above). The decision was based on the documents furnished by the Split Social Welfare Centre, an interview with I.B. conducted in the State Attorney’s Office, and a separate interview with both children conducted before the investigation judge of the Split County Court with the assistance of a social pedagogue. The relevant part of that decision reads as follows:

“It follows from [the established] facts ... that in the specific case there is no reasonable suspicion that I.B. committed the criminal offence defined in Article 173 paragraph 1 of the Criminal Code. ... It cannot be concluded that the father is exerting pressure on the children and [that he] urges them not to have contact with the mother. The documents enclosed suggest otherwise - namely, that he, [albeit] with certain difficulties ... takes the children for ... treatment with Dr D.B. and other doctors so that the children might adjust [their behaviour to accommodate] judicial decisions ... It also follows that the suspect is in constant contact with the [Split] Social Welfare Centre and that the supervising officer visits his home and checks the situation of the children, who, on the other hand, when pressured to see the mother, threaten to call the police, run away from home or do something else inappropriate.”

87.  At a hearing held on 13 January 2015 the court accepted the experts’ request to be excused and appointed new experts, a certain Dr Do.B. (a psychiatrist) and a certain Ms A.B. (a psychologist).

88.  The new experts submitted their opinion on 10 June 2015. In their view the children’s estrangement from their mother was the result of their father’s negative attitude toward her. The experts stated that a high level of the children’s alienation from, and hostility towards, their mother was at present an obstacle to the immediate establishment of contact. The experts thus recommended referring the father for psychotherapy with a view to changing his attitudes toward the applicant, as well involving in that process the supervising officer, who should, in the course of supervising the exercise of the father’s parental authority, also work with him towards that goal. They further recommended that, after a period of six months, the applicant be granted contact rights, to be exercised once a month for one hour on the premises of the Split Social Welfare Centre; thereafter, if the situation permitted, contact could be extended.

89.  At meetings held on 9 July and 7 August 2015 at the Split Social Welfare Centre its officials informed I.B. of the experts’ opinion; subsequently he agreed to undergo the recommended psychotherapy.

90.  At a hearing held on 31 August 2015 the applicant, relying on the above expert opinion, requested that I.B. be deprived of custody. At the end of the hearing the court issued a decision whereby it:

- referred I.B. to psychotherapy and instructed the supervising officer to work with him on changing his negative attitude toward the applicant;

- decided that the applicant’s request for I.B. to be deprived of custody would be examined within the present proceedings, together with her initial request for a change in contact arrangements;

- ordered the Split Social Welfare Centre to appoint a special guardian (ad litem) for the children, pursuant to section 167(6) of the Family Act (see paragraph 101 below) and to submit a report and recommendations regarding the applicant’s request for I.B. to be deprived of custody.

91.  By a decision of 18 September and 17 November 2015 the Split Social Welfare Centre appointed two of its employees to act as special guardians to the children.

92.  On 2 October 2015 the Split Social Welfare Centre submitted the report and recommendation requested by the court (see paragraph 90 above). The report suggested that depriving I.B. of custody would be contrary to the children’s best interests.

93.   On 15 November 2015 I.B. started regularly attending therapy with a certain Dr S.D., a psychiatrist, pursuant to the court order (see paragraph 90 above). Between that date and 12 May 2016, when the therapy ended, he attended therapy twice a month and attended a total of twelve sessions.

94.  On 18 July 2016 that psychiatrist submitted a report on the course of I.B.’s psychotherapy and its effects. The relevant part of her report reads as follows:

“All memories of his former wife are painted negatively. Therefore, he simply cannot understand the experts’ concern for the children’s welfare [prompted by the fact that] they are not seeing their mother. [His opinion is reinforced by the fact that] he thinks that he saved them when he took them into his care.

... At the conscious level we have achieved [a situation wherein] he will not resist contact between the mother and the sons, but only if [the sons] agree to that. He does not want to force them in any way to do that, nor does he want others to force them because, he says, after every conversation with the mother or every time she shows up, the children have psychological difficulties.

[Even though] we have achieved the desired effect at the conscious level (that is to say he will not resist contact between the mother and the sons if the children agree to that), I could not influence the subconscious processes because of the structure of his personality. I am therefore of the opinion that there is no purpose in continuing with the psychotherapy.”

95.  It would appear that the proceedings are still pending before the Split Municipal Court.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The Constitutional Court Act

1.  Relevant provisions

96.  The relevant provisions of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/99, with subsequent amendments - “the Constitutional Court Act”) read as follows:

III.  PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT - GENERAL PROVISIONS

Section 31(4) and (5)

“(4)  The Constitutional Court may itself designate an authority on which it confers the implementation of its decision or ruling.

(5)  The Constitutional Court may determine the manner in which its decision or ruling shall be implemented.”

V.  PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Section 62

“(1)  Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State authority or local or regional government, or a legal person vested with public authority, regarding his or her rights or obligations, or regarding a suspicion or accusation in respect of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, as guaranteed by the Constitution (‘constitutional rights’) ...

(2)  If another legal remedy is available in respect of the violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after this remedy has been exhausted.

(3)  In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been delivered.”

Section 63(1)

“The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted ... if the contested decision grossly violates constitutional rights and it is completely clear that the complainant may risk serious and irreparable consequences if Constitutional Court proceedings are not instituted.”

2.  Relevant practice

97.  In case no. U-III-1902/2008 the Constitutional Court examined a constitutional complaint lodged by a mother against the decisions of ordinary courts dismissing her request to be granted contact rights in respect of her son, who had been placed in the care of and was living with his paternal grandmother, and who had been refusing to meet her. The lower courts had based their decisions on the opinion of expert psychiatrists and psychologists, who had found that contact between the complainant and her son had not been possible at that point, as the child had categorically refused to see his mother. However, the experts had also suggested that the situation could be overcome if the child underwent psychotherapy.

98.  The Constitutional Court held that every alleged violation of the right to respect for family right must be examined by viewing all the relevant proceedings in their entirety, irrespective of the type of proceedings (whether administrative or judicial) and the authorities before which they had been conducted (whether social welfare centres or courts).

99.  The Constitutional Court found a violation of the complainant’s constitutional right to respect for her family life and quashed the contested decisions of the ordinary courts. It identified several shortcomings in the actions of the domestic courts, such as a procedural delay, the refusal to appoint a special guardian to the child (given that his interests might have been in conflict with those of his grandmother, who had the right of custody), and the failure to order a further (that is to say second) expert opinion recommended by the experts.

100.  The court also held that the quashing of the contested decisions had created an obligation for the welfare authorities to engage experts in the relevant fields and to take all the steps and measures within their statutory purview necessary to prepare the complainant and her child for a family reunion. The court, in the operative provisions of its decision, therefore ordered the relevant social welfare centre to take such steps, with a view to creating conditions for (and securing effective contact between) the mother and her son.

B.  Family Act

101.  The relevant provisions of the Family Act of 2003 (Obiteljski zakon, Official Gazette no. 163/03, with subsequent amendments - hereafter “the Family Act”), which was in force between 22 July 2003 and 1 September 2014, read as follows:

Third part

PARENTS AND CHILDREN

II.  RIGHTS AND DUTIES BETWEEN PARENTS AND CHILDREN

1.  Rights and duties of the child

Section 89

“ ...

(2)  The child is entitled to a special guardian in cases specified by this Act.

(3)  The special guardian shall be appointed by the social welfare centre in cases where another authority is deciding on the infringement of the child’s rights, and by a court when the social welfare centre is competent to decide on the rights of the child.

(4)  The special guardian shall submit a report on the representation of the child at the request of, and within the time-limit set by, the authority that appointed him or her.

(5)  In proceedings involving decisions on the child’s rights or interests the child is entitled to be informed in an appropriate way of the relevant circumstances of the case, obtain advice and express his or her views, and to be informed of the possible consequences of [those] views. The [child’s] views shall be given due weight in accordance with his or her age and [degree of] maturity.”

3.  Measures for the protection of the rights and welfare of the child

Section 109

“The social welfare centre shall warn the parents of mistakes and shortcomings in the care and upbringing of their child and assist them to correct those mistakes and shortcomings. It may also refer them for counselling or to a parenting school.”

Section 110

“(1)  The social welfare centre shall order supervision of the exercise of parental authority when the errors and omissions are various and frequent or when the parents need special assistance in bringing up their child.

...

(3)  The supervision programme may entail referring the child to a children’s home for half a day or for a full day, referring parents and the child to medical and other institutions for treatment, and other professional assistance.

(4)  The supervision shall be ordered for a minimum period of six months. ...”

Fifth part

GUARDIANSHIP

III.  GUARDIANSHIP IN SPECIAL CASES

Section 167

“In order to protect certain personal and pecuniary rights and interests the social welfare centre shall appoint a special guardian:

...

6.  ... in other cases where the interests of the child conflict with those of the parents.”

Eighth part

JUDICIAL PROCEEDINGS

I.  COMMON PROVISIONS

Section 263

“(1)  The provisions of this part of the Act determine the rules by which the courts shall proceed in special civil [contentious] and non-contentious proceedings and special enforcement and security proceedings when deciding on matrimonial, family and other matters regulated by this Act.

(2)  Proceedings referred to in paragraph (1) of this section shall be [deemed to be] urgent.” ...

Section 266

“The second-instance court shall issue and dispatch a decision on any appeal against a first-instance decision rendered in cases referred to in section 263 paragraph 1 of this Act, within sixty days of the date on which the appeal was received.”

102.  Section 353, read in conjunction with sections 341 and 343-47, regulated the enforcement of contact orders. Section 344 specified that in the course of such enforcement proceedings the court had to endeavour to protect the child to the greatest possible extent.

103.  Section 345(1) provided that the court, upon consideration of all the circumstances of the case, could order enforcement either by taking away the child or by imposing fines against or ordering the incarceration of persons who, contrary to a court order, refused to hand over the child or took actions with the aim of hiding the child or obstructing the execution of that court order. Paragraph 3 of the same section specified that if the purpose of enforcement could not be achieved by one method, the court could order another of the methods of enforcement referred to in paragraph 1.

104.  Section 346 stipulated that the method of enforcement did not have to be specified in the application for enforcement and that, even if it was specified, that method did not bind the court.

105.  Section 347(5) provided that the court had to inform the parent who had been granted contact rights of the time and place of enforcement and that it could invite representatives of the social welfare centre to attend enforcement.

C.  The Criminal Code

106.  The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 125/11, with subsequent amendments), which has been in force since 1 January 2013, reads as follows:

CHAPTER EIGHTEEN (XVIII)

CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND CHILDREN

Non-execution of a child protection measure

Article 173

“Anyone who fails to execute, obstructs or renders impossible the execution of a child protection measure ordered by the court, social welfare centre or [other] State authority shall be punished by imprisonment of up to one year.”

THE LAW

I.  CAPACITY OF THE APPLICANT TO ACT ON BEHALF OF THE CHILDREN

A.  The parties’ arguments

107.  The Government submitted that the present case concerned non-enforcement of contact rights and not a dispute over custody. They further referred to the Court’s case-law (see Sahin v. Germany (dec.), no. 30943/96, 12 December 2000, and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 88, 1 December 2009), under which in such cases the non-custodial parent could not bring an application in the name of his or her children. That being so, and given that it was I.B. and not the applicant who had been awarded sole custody of the children by the Split Municipal Court’s judgment of 7 April 2011 (see paragraph 50 above), the Government argued that the applicant was not entitled to lodge the application on behalf of the children.

108.  The applicant replied that she had capacity to act on behalf of the children because:

- they were still minors and thus could not protect their rights and interests themselves;

- lack of contact between a parent and a child was a violation not only of the parent’s rights but also (and very often primarily) of the child’s rights; and

- their father and the authorities had failed to protect the children’s right to have contact with her, their mother.

B.  The Court’s assessment

109.  The present case does indeed not concern the merits of the decisions on custody rights. Rather, it concerns a dispute between the father, who has custody over the children (see paragraph 50 above), and the applicant, their natural mother, about the (enforcement of) her contact rights. As the Court’s case-law bears out (see Sahin, cited above; Siebert v. Germany (dec.), no. 59008/00, 9 June 2005; and Eberhard and M., loc. cit.):

“... [S]uch conflicts concerning parental rights other than custody do not oppose parents and the State on the question of deprivation of custody where the State as holder of custodial rights cannot be deemed to ensure the children’s Convention rights. In cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests. In these situations, the position as natural parent cannot be regarded as a sufficient basis to bring an application also on behalf of a child.”

Consequently, the applicant has no capacity to act on her sons’ behalf (see Eberhard and M., cited above, §§ 89-90).

110.  It follows that, in so far as the present application is brought on behalf of the applicant’s children, it is incompatible ratione personae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 thereof (see, mutatis mutandis, Kruškić v. Croatia (dec.), no. 10140/13, 25 November 2014).

II.  ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION

111.  The applicant complained that, by failing to secure regular contact with her sons, which was necessary to maintain family ties between them, the domestic authorities had breached their positive obligations and thereby violated her right to respect for her family life, as guaranteed by Article 8 of the Convention. She also complained under Article 13 of the Convention that she had not had an effective remedy by which to complain about that violation. The relevant part of those Articles reads as follows:

Article 8

Right to respect for private and family life

1.  Everyone has the right to respect for his ... family life ...

Article 13

Right to an effective remedy

Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

112.  The Government contested those arguments.

113.  The Court, being master of the characterisation to be given in law to the facts of the case, and having regard to its case-law on the subject (see, for example, Mikulić v. Croatia, no. 53176/99, § 73, ECHR 2002-I), considers that in the circumstances of the present case the complaint under Article 13 of the Convention must be regarded as absorbed by the complaint under Article 8 thereof. The case thus falls to be examined only under the latter Article.

A.  Admissibility

114.  The Government disputed the admissibility of this complaint by arguing that the applicant had failed to exhaust domestic remedies and that she had not complied with the six-month rule.

1.  Exhaustion of domestic remedies

(a)  The submissions of the parties

(i)  The Government

115.  The Government firstly submitted that the applicant had not exhausted domestic remedies.

116.  In particular, in the above-mentioned enforcement proceedings (see paragraphs 54-59 above) the applicant had not appealed against the Split Municipal Court’s decision of 28 December 2011 whereby that court had dismissed her application for enforcement (see paragraphs 54 and 59 above). In this way she had also forfeited her right to lodge a constitutional complaint in those proceedings (see section 62(2) of the Constitutional Court Act in paragraph 96 above).

117.  The Government further specified that in the first set of proceedings concerning new contact arrangements (see paragraphs 60-75 above) the applicant had not:

-  lodged a constitutional complaint against the Split County Court’s decision of 10 January 2013 (see paragraph 72 above) whereby that court had dismissed her appeal and upheld the Split Municipal Court’s decision of 6 August 2012 (see paragraph 69 above), nor

-  applied for enforcement of the latter decision.

118.  The Government also pointed out that the applicant had not lodged a constitutional complaint against any of the decisions in the proceedings complained of.

119.  In reply to the applicant’s arguments that she had not pursued the enforcement proceedings or instituted new ones because the use of coercive measures or imposition of fines had been inappropriate in the given circumstances (see paragraphs 121-122 below), the Government submitted that non-coercive measures could have also been undertaken in those proceedings to overcome her sons’ resistance to meeting her. However, she had never requested that such measures be carried out in the enforcement proceedings that she had instituted nor specified which measures had not been, but should have been, taken. Such measures could also have been implemented had the applicant instituted enforcement proceedings to enforce the decision of 6 August 2012 setting new contact arrangements (see paragraph 69 above). However, she had never instituted such proceedings. For these reasons the Government considered that the applicant’s arguments regarding the alleged ineffectiveness of enforcement proceedings could not be accepted.

120.  As regards the applicant’s argument that a constitutional complaint was not an effective remedy because she had not complained about any decision of the domestic authorities but rather about non-enforcement of her contact rights (see paragraph 123 below), the Government referred to the case-law of the Constitutional Court (see paragraphs 97-100 above) under which alleged infringements of the right to respect for family life required examination of all relevant proceedings, regardless of their nature (administrative or judicial). That case-law also showed that the Constitutional Court very thoroughly examined complaints concerning the right to family life and placed special emphasis on the right of a child to have contact with both parents, as well as on the State’s positive obligations to facilitate such contact. Lastly, under section 31(4) and (5) of the Constitutional Court Act that court had the power to designate a specific domestic authority to carry out its decisions and could order the specific manner of their execution (see paragraph 96 above). Therefore, had the applicant lodged a constitutional complaint against the Split County Court’s decision of 10 January 2013 (see paragraph 72 above), the Constitutional Court would have reviewed all the proceedings up until that point and could have ordered, either of its own motion or upon her request, specific measures to be taken with a view to re-establishing contact between the applicant and her sons.

(ii)  The applicant

121.  As regards the above enforcement proceedings (see paragraphs 54-59 above) the applicant replied that when her application for enforcement had been dismissed the passage of time had already had such irremediable consequences for relations between her and her sons that insisting on the enforcement of the judgment of 7 April 2011 would have been counterproductive, illusory and not in her children’s best interests. At that time much more subtle measures had been required than those of imposing fines on I.B. or taking away the children by force. That was why the appeal against the decision of 28 December 2011 (see paragraph 59 above) had not constituted an effective remedy to be first exhausted.

122.  For the same reasons, applying for enforcement of the decision of 6 August 2012 defining new contact arrangements (see paragraph 69 above) had not been an effective remedy either.

123.  As regards a constitutional complaint, the applicant explained that such a complaint could be lodged only in respect of a decision issued by public or State authorities (under section 62(1) of the Constitutional Court Act - see paragraph 96 above) and that in her case her right to respect for her family life had not been violated by such a decision. Rather, she complained that she had been unable to have contact with her children for more than three years, despite judicial decisions granting her contact rights. That situation had resulted from the failure of the domestic authorities to fulfil their positive obligation to take all necessary steps to facilitate such contact. The violation complained of thus constituted a continuing situation in respect of which no domestic remedy had been available.

(b)  The Court’s assessment

124.  The Court reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). It further notes that in the period before the applicant lodged her application with the Court on 22 May 2013 (see paragraph 1 above), the domestic judicial and welfare authorities had considered that her contact rights had remained unenforced because of the children’s strong resistance to meeting her and not because the children’s father, I.B., had been obstructing the exercise of those rights (see, in particular, paragraph 59, but also paragraphs 58, 64 and 67 above). That being so, the Court considers that the methods of enforcement available at the relevant time under Croatian law (fines, incarceration and the physical removal of the children, see section 345 of the Family Act, cited in paragraph 103 above) - all directed against an adult obstructing the enforcement of contact orders - could not have been considered effective in such a situation. The Court therefore cannot accept the Government’s argument that the applicant failed to exhaust domestic remedies in that she did not appeal against the decision of 28 December 2011, and nor did she apply for enforcement of the decision of 6 August 2012, upheld by the decision of 10 January 2013, in the first set of proceedings concerning contact arrangements (see paragraphs 115-117 above).

125.  For some two years after the applicant lodged her application with the Court, that is to say until the forensic experts submitted their opinion of 10 June 2015 (see paragraph 88 above), the domestic authorities maintained their view that the father was not obstructing the exercise of the applicant’s contact rights (see paragraph 86 above). Even after those experts had established that the children’s behaviour had been a result of their father’s negative attitude toward the applicant, the domestic authorities did not resort to any of the above-mentioned methods of enforcement but referred the father to psychotherapy (see paragraph 90 above). The applicant, for her part, at that point resorted to probably the strongest possible remedy in the circumstances and asked that the children’s father be deprived of custody (see paragraph 90 above).

126.  As regards the Government’s argument that the applicant should have lodged a constitutional complaint under section 62 of the Constitutional Court Act (see paragraphs 117-118 above), the Court, having regard to its case-law (see, for example, Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §§ 94-95, 21 July 2015, and Iordache v. Romania, no. 6817/02, §§ 57-67, 14 October 2008), considers that the violation complained of indeed concerns a continuing situation rather than a specific decision of the domestic authorities. Given that in such circumstances the only effective remedy would have been the one capable of addressing a continuing situation whereas a constitutional complaint under section 62 of the Constitutional Court Act may be lodged only against a decision (see paragraph 96 above), the Court finds that the applicant did not have to resort to that remedy.

127.  The Government’s objection regarding non-exhaustion of domestic remedies must therefore be rejected.

2.  Compliance with the six-month rule

(a)  The submissions of the parties

128.  The Government also pointed out that the above divorce and custody proceedings had ended on 7 April 2011 (see paragraphs 22-51 above) and the ensuing enforcement proceedings on 28 December 2011 (see paragraphs 51-59 above), whereas the application had been lodged on 22 May 2013 (see paragraph 1 above) - that is to say more than six months later. The Government therefore invited the Court to declare the application inadmissible for non-compliance with the six-month rule in so far as it concerned those two sets of proceedings.

129.  The applicant referred to her above-mentioned argument that the violation complained of had constituted a continuing situation against which no domestic remedy had been available (see paragraph 123 above). That had rendered the six-month rule inapplicable.

(b)  The Court’s assessment

130.  The Court refers to its findings above (see paragraphs 124-27) that the violation complained of concerns a continuing situation and that none of the remedies relied on by the Government could have remedied that situation, which is still ongoing. In such circumstances the six-month rule thus could not have even started to run, much less expired.

131.  The Government’s objection regarding non-compliance with the six-month rule must therefore be rejected.

3.  Conclusion

132.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The submissions of the parties

(a)  The applicant

133.  The applicant reiterated her argument that the domestic authorities had failed to fulfil their positive obligation to take all necessary steps to maintain family ties between her and her children, with whom she had not had any meaningful contact since summer 2010. More specifically, the welfare authorities had done nothing to prepare the applicant and the children for the meetings between the applicant and the children or to convince I.B. to cooperate; nor had they otherwise offered any psychological or other support to any member of the family. The applicant added that the Government in their observations had not specified what exactly had been done to help her sons to overcome their resistance towards her, which was definitely a sign of serious psychological disturbance. The Government’s observations had been very detailed and had referred to various reports, expert opinions and minutes finding that the situation was critical and that the children did not want to see their mother, but there had been nothing about measures aimed at solving that problem.

(b)  The Government

134.  The Government submitted that the applicant’s inability to regularly see her children was a result of their strong, active and continuous resistance, and the still difficult and conflictual relationship between her and her former husband. In those circumstances, the therapy and counselling the children had been receiving were the only adequate means of resolving the situation without damaging their emotional and mental health. It was agreed by the psychiatrists and psychologists who had been treating the children that the use of force or pressure would have been traumatic for the children and could have left a permanent mark. It was therefore highly inadvisable and not in the children’s best interests to resort to coercive measures. In such a situation of conflict between the rights and interests of the applicant, as the mother, and her children, it had been necessary to give priority to the interests of the children and to protect their emotional and mental health as much as possible.

135.  The Government further averred that there were no indications that the actions or omissions of the State authorities had led or contributed to the development of the children’s resistance toward the applicant. On the contrary, the State had taken and was still taking all appropriate and reasonably possible measures for establishing regular contact between the applicant and her children and for resolving the difficult family situation. The Government could not therefore accept the applicant’s argument that the welfare authorities had done nothing to prepare her and the children for the meetings (see paragraph 133 above). In the Government’s view, by making such an argument the applicant disregarded the fact that the children had been under constant expert supervision and ignored the extensive coordinated multi-disciplinary efforts undertaken by various domestic authorities with a view to improving the situation and re-establishing regular contact between her and the children. In particular, the Government pointed out that:

- since August 2010, when the first indications of possible problems in the children’s relationship with their mother had been detected, the children had been under constant psychiatric and psychological treatment and counselling precisely to overcome their resistance toward the applicant and to prepare them for meetings with her (see paragraphs 37, 43, 45, 57, 63, 68, 70, 79 and 85 above);

- aside from the expert team from the Split Social Welfare Centre, the supervising officer, who was both a psychologist and a pedagogue, had been supervising the family and working with the children continuously since June 2011 by visiting them at their home at least twice a month and by contacting them by telephone (see paragraphs 52-53 above);

- the employees of the school the children attended and their general practitioner had been made aware of the situation, instructed as to the appropriate course of action, and asked to pay special attention to them and offer them support in case of need, as well as to warn the competent authorities of any possible problems.

136.  In so doing the domestic authorities had been fully complying with the experts’ recommendations and had been acting in the best interests of the children and with a view to ensuring their emotional and psychological well-being.

137.  In addition to the above, through collaboration with the Split and Ivanić-Grad Social Welfare Centres, as well as with doctors, psychologists and the children’s school, the applicant had been regularly informed of the children’s school results, health and behaviour, and in that way had at least been able to participate in their lives to the extent possible in the given circumstances.

138.  The Government stressed that all those measures (see paragraph 135 above) would continue to be implemented and adapted according to the situation and the children’s condition.

139.  The Government further emphasised that the applicant had agreed to the children spending the summer holidays of 2010 in S. with their father (see paragraph 31 above) and had helped them to prepare for that stay. However, during that stay the applicant had not visited them a single time, even though the provisional measure of 18 June 2010 had entitled her to do so (see paragraphs 30 and 35 above). If she had not had sufficient means to pay for the travel or if her psychological condition had prevented her from visiting the children in I.B.’s house (see paragraph 31 above), the Government argued that she could have requested assistance from the Split Social Welfare Centre, which could have offered her financial aid, psychological support and/or ensured the presence of members of its staff during the meetings.

140.  Moreover, the scheduled stay of the children with their father in S. was relatively short (July and August 2010) and there had been no indication that I.B. had been negatively influencing them. Already in August 2010 the children had started attending psychotherapy sessions with Dr J.Š., who had pointed out that during their stay in S. the children had developed resistance to returning to I., rather than to their mother (see paragraphs 37 and 43 above). In other words, they had had a problem with their place of residence, and not with the parent they would live with (see paragraph 43 above). In the Government’s view, the applicant’s constant insistence on them coming to I. had worsened the situation and exposed the children to additional pressures in an already emotionally difficult situation.

141.  In view of the above, it was not clear to the Government what additional measures the State could or should have taken. They thus argued that the appropriate domestic authorities had undertaken all reasonable and possible measures to re-establish and improve contact between the applicant and her children, and accordingly invited the Court to find that there had been no violation of her right to family life.

2.  The Court’s assessment

142.  The Court notes that the present case concerns non-enforcement of judicial decisions whereby the applicant was granted contact rights. As a result, she was unable to see her children or establish regular and meaningful contact with them. The relevant principles regarding the State’s positive obligation under Article 8 of the Convention in cases concerning enforcement of contact rights are summarised in the case of Ribić v. Croatia (see Ribić v. Croatia, no. 27148/12, §§ 88-89 and 92-95, 2 April 2015, and the cases cited therein). Therefore, in the present case the Court’s task consists of examining whether the domestic authorities took all necessary steps that could reasonably be demanded in the specific circumstances to facilitate contact between the applicant and her children after she separated from her husband. The adequacy of the measures is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the applicant and her children and may result in a de facto determination of the matter (ibid., §§ 93-94).

143.  Furthermore, given that the Government’s main argument that the applicant’s inability to regularly see her children was a result of the children’s strong and continuous resistance (see paragraph 134 above), the Court finds it important to reiterate that while its case-law requires children’s views to be taken into account, those views are not necessarily immutable and their objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests, especially in having regular contact with their child (see, mutatis mutandis, Raw and Others v. France, no. 10131/11, § 94, 7 March 2013). The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests (see C. v. Finland, no. 18249/02, §§ 57-59, 9 May 2006); such interests normally dictate that the child’s ties with its family must be maintained, except in cases where this would harm the child’s health and development (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010). What is more, if a court would base a decision on the views of children who are palpably unable to form and articulate an opinion as to their wishes - for example, because of a loyalty conflict and/or their exposure to the alienating behaviour of one parent -such a decision could run contrary to Article 8 of the Convention (see Laylle v. Germany, no. 26376/95, Commission decision of 4 September 1996, unreported).

144.  The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see, for example, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII). Thus, restrictions on contact rights call for stricter scrutiny than restrictions on other parental rights (see K. and T. v. Finland, cited above, § 155). The Court therefore considers that in cases such as the present one, where the children resist contact with one parent, Article 8 of the Convention requires States to try to identify the causes of such resistance and address them accordingly. It is an obligation of means, not of result, and may require preparatory or phased measures (see Ribić, § 94). The cooperation and understanding of all concerned will always be an important ingredient (ibid., loc.cit.). However, since the authorities must do their utmost to facilitate such cooperation, the lack of it is not a circumstance which can by itself exempt them from their positive obligations under Article 8 (see the preceding paragraph and Ribić, §§ 94-95). Rather, it requires of the authorities that they take measures to reconcile the conflicting interests, keeping in mind the best interests of the child as a primary consideration (see Ribić, § 94). Only after such measures have been exhausted are the domestic authorities to be considered to have complied with their positive obligations under Article 8 of the Convention.

(a)  Delay in deciding on the applicant’s appeal against the provisional measure setting contact arrangements during the summer holidays of 2010, and the failure to address her arguments

145.  In this connection the Court first notes that the children began drifting apart from their mother in July and August 2010, that is to say, during the summer holidays, which they spent with their father. In that period the applicant did not go to see the children a single time because the Split Municipal Court’s decision of 18 June 2010 on the provisional measure stated that she was to exercise her contact rights in I.B.’s home. For the applicant this was both objectionable for psychological reasons and costly, as it entailed her having to travel to S. (see paragraph 31 above). She considered such contact arrangements awkward and thus unacceptable and appealed against that part of the decision (see paragraph 31 above). The Court finds it evident that, in order to have any effect, her appeal had to be decided urgently. Yet the Split County Court only decided on the applicant’s appeal on 20 May 2011, almost eleven months after the end of the period covered by the first-instance decision (see paragraphs 32 above). That court thus failed to recognise the urgency of the situation and even ignored the domestic law providing that judicial proceedings in respect of family matters were urgent and that appeals in such proceedings had to be decided within sixty days (see sections 263 and 266 of the Family Act, cited in paragraph 101 above). In other words, it allowed the passage of time to resolve the matter.

146.  What is more, when dismissing the applicant’s appeal the Split County Court paid no heed to her argument as to the impracticability of contact arrangements, even though that argument was clear, explicit and relevant in terms of Article 8 of the Convention (compare, for example, Gluhaković v. Croatia, no. 21188/09, §§ 64-69, 12 April 2011) and thus needed to be answered.

147.  The Government argued that the applicant’s difficulties in maintaining contact with the children in that period would have been alleviated if she had asked for the assistance of the Split Social Welfare Centre, which could have, inter alia, organised meetings between them in a manner more acceptable for her (see paragraph 139 above). However, the Court finds it difficult to accept that argument given that arranging meetings differently by the welfare authorities would have run contrary to the contact arrangements set by the Split Municipal Court in its decision of 18 June 2010 (see paragraph 30 above).

(b)  Failure to provisionally regulate custody and contact rights in the divorce and custody proceedings

148.  The Court further notes that, apart from the provisional measure of 18 June 2010, which applied only to the summer holidays of 2010, the domestic courts did not temporarily regulate custody and contact rights in respect of the children in the divorce and custody proceedings (see paragraphs 22-51 above). While it is true that this issue was examined during the concurrent proceedings in respect of the regulation of I.B.’s contact rights, those proceedings ended without a binding decision on 16 April 2010 (that is to say a year before the divorce) and the custody proceedings were concluded on 7 April 2011 (see paragraphs 21 and 50-51 above).

149.  For this reason, the enforcement order of 13 September 2010 ordering I.B. to hand over the children to the applicant after the summer holidays could not be carried out (see paragraph 40 above). According to the welfare authorities and forensic experts, returning the children to their mother would have been the appropriate course of action at the time (see paragraphs 39 and 41 above).

(c)  Delay in ordering an expert evaluation of the children regarding the causes of their resistance to having contact with the applicant

150.  As already noted above (see paragraph 145 above), the children started showing signs of resistance towards their mother during their stay with their father in the summer of 2010. However, the domestic authorities only decided to procure an opinion from forensic experts as to the causes of the children’s resistance on 11 November 2013 and eventually obtained it only on 10 June 2015 (see paragraphs 80 and 88 above). In other words, it took the domestic authorities almost five years to obtain the authoritative opinion necessary for them to make an informed decision as to what measures to take to address the applicant’s children’s refusal to meet her.

(d)  Delay in referring the children for treatment and in imposing the child protection measure of supervision of the exercise of parental authority

151.  The Court also notes that the authorities became involved in the children’s treatment as late as April 2012, when the supervising officer recommended to their father that he take the boys to the polyclinic in Split (see paragraph 63 above), even though the need for the children to attend treatment in order to overcome the emotional difficulties brought about by their parent’s separation had already been identified by the relevant professionals in July and October 2009 (see paragraphs 15 and 18 above). What is more, the facts of the case suggest that the various courses of treatment that the children underwent over the years were not, for the most part, regularly monitored, streamlined or coordinated by the welfare or judicial authorities.

152.  The Court also notes that in their joint opinion of 10 May 2010 the forensic experts in psychology and psychiatry recommended the imposition of the child protection measure of supervision of the exercise of parental authority (see paragraph 27 above). However, the Split Social Welfare Centre only imposed that measure on 30 May 2011 (see paragraph 52 above), that is to say more than one year after the recommendation by the experts and eight months after the children started expressing reluctance to having contact with their mother (see paragraphs 35 and 37 above). Furthermore, even though the domestic law allowed for such a possibility (see section 110 of the Family Act, cited in paragraph 101 above), the imposed child protection measures have never entailed the children’s being referred for regular treatment, which would have rendered such treatment mandatory and the authorities obliged to monitor it.

(e)  Conclusion

153.  Delays and shortcomings identified above are sufficient for the Court to conclude that the domestic authorities have not discharged their positive obligations under Article 8 of the Convention towards the applicant regarding her right to respect for family life.

There has accordingly been a violation of Article 8 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

154.  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.”

A.  Damage

155.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

156.  The Government contested that claim.

157.  The Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards her EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

158.  The applicant also claimed EUR 4,270 for the costs and expenses incurred before the Court. She enclosed an agreement concluded between her and her representative stipulating that the costs and expenses awarded should be paid directly to the representative.

159.  The Government contested the claim.

160.  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 3,780 for the proceedings before the Court. The Court also notes that it is its standard practice to rule that an award in relation to costs and expenses is to be paid directly to the lawyers upon the applicant’s request to this end (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 174-75, ECHR 2005-VII).

C.  Default interest

161.  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.

IV.  ARTICLE 46 OF THE CONVENTION

162.  The applicant also asked the Court to indicate an individual measure with a view to helping the respondent State to fulfil its obligations to abide by the final judgment of the Court and put an end to the violation found. In particular, the applicant invited the Court to ask the respondent State to secure effective contact between the applicant and her children, pursuant to the Split Municipal Court’s decision of 6 August 2012, on suitable premises, and with all necessary and appropriate measures of psychological and other support in place. In so doing the applicant relied on Article 46 of the Convention and the Court’s judgment in the Gluhaković case (cited above).

163.  The Government did not comment on this issue.

164.  Article 46 of the Convention provides as far as relevant:

“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

165.  The Court has found that the domestic authorities have failed in their positive obligation to secure effective contact between the applicant and her children, in violation of Article 8 of the Convention (see paragraphs 142-53 above).

166.  The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, appropriate individual measures to fulfil its obligations to secure the right of the applicant to respect for her family life (see Gluhaković, cited above, § 85, and the cases cited therein).

167.  The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (ibid., § 86, and the cases cited therein).

168.  Exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a violation it has found to exist (ibid., § 87, and the cases cited therein).

169.  Having regard to the specific circumstances of the present case which concerns an evolving situation, and taking into account that the case is still pending, the Court does not consider it necessary to indicate individual measures that the State has to adopt for the execution of the present judgment (compare Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 109, ECHR 2009).

FOR THESE REASONS, THE COURT

1.  Declares, unanimously, the application inadmissible in so far as it was lodged on behalf of the applicant’s children;

 

2.  Declares, unanimously, the remainder of the application admissible;

 

3.  Holds, by four votes to three, that there has been a violation of Article 8 of the Convention;

 

4.  Holds, by four votes to three,

(a)  that the respondent State is to pay, 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 Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 12,500 (twelve thousand five hundred euros) to the applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,780 (three thousand seven hundred and eighty euros) to the applicant’s representative 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 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                        Işıl Karakaş
Deputy Registrar                                                                       President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint separate opinion of Judges Karakaş, Lemmens and Ravarani is annexed to this judgment.

 

A.I.K.
H.B.

 




JOINT DISSENTING OPINION OF JUDGES KARAKAŞ, LEMMENS AND RAVARANI

 

1.  To our regret, we cannot share the Court’s conclusion that there has been a violation of Article 8 of the Convention.

 

2.  The case originated in a conflict between the parents of two boys. Between April 2009 and June 2010 the boys stayed with the applicant, their mother; after having spent the summer of 2010 with their father, they refused to return to the applicant, and even vehemently opposed visits by her. The applicant complains that the authorities failed in their positive obligation to secure regular contacts with her and her sons, notwithstanding court decisions granting her contact rights.

 

As stated in the judgment, in a case like the present one it is the Court’s task to examine whether the domestic authorities took all the necessary steps to facilitate contact that could reasonably be demanded in the specific circumstances of the case (see paragraph 142 of the judgment, and, among other authorities, Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII; Ball v. Andorra, no. 40628/10, § 49, 11 December 2012; Kuppinger v. Germany, no. 62198/11, § 101, 15 January 2015; and Ribić v. Croatia, no. 27148/12, § 93, 2 April 2015).

 

3.  The majority consider that the authorities had a duty to identify the causes of the children’s resistance towards their mother, and to address them accordingly (paragraph 144 of the judgment). They suggest that in the given circumstances this implied that the authorities had to ensure that the children underwent professional treatment by psychiatrists or psychologists (see paragraph 151 of the judgment).

 

We find it difficult to read such a strict obligation into the Convention.

 

4.  We note that the authorities, considered globally, were well aware of the problems encountered by the applicant in establishing contact with her children. They did not sit idle. After several hearings and the submission of an expert report on the father, the Split Municipal Court on 7 April 2011 awarded custody to the latter and granted the applicant the right to be visited by her children in her home (see paragraph 50 of the judgment). On 30 May 2011, the Split Social Welfare Centre imposed a “supervision” measure geared to establishing unhindered contacts between the applicant and her children (see paragraph 52 of the judgment). After various unsuccessful attempts at a meeting, and upon the advice of the supervising officer, the Municipal Court on 28 December 2011 decided not to order enforcement of its earlier decision (see paragraph 59 of the judgment). After some further unsuccessful attempts at a meeting, and upon reports of the supervising officer and the Split Social Welfare Centre, the Municipal Court on 6 August 2012 changed the contact arrangement, specifying that the applicant would have the right to see her children near the place where they stayed with their father (see paragraph 69 of the judgment). During new proceedings, instituted by the applicant in order to obtain a change in the contact arrangement, upon the recommendation of the Split Social Welfare Centre (see paragraph 77 of the judgment), the Municipal Court on 11 November 2013 appointed experts to determine the causes of the children’s refusal to have contact with their mother (see paragraph 80 of the judgment). It is true that these experts criticised the way in which the welfare and judicial authorities had handled the situation up until then, and therefore asked to be relieved of further cooperation with the court (see paragraph 84 of the judgment). Faced with this reaction, the Municipal Court appointed new experts, and on 31 August 2015, after having received their report, referred the father to psychotherapy, instructed the supervising officer to work with him on changing his negative attitude toward the applicant, and ordered the Split Social Welfare Centre to appoint a special guardian “ad litem” for the children (see paragraph 90 of the judgment). After the father had undergone six months’ therapy, his psychiatrist stated in a report of 18 July 2016 that she had managed to achieve a situation whereby at the conscious level the father would not resist contact between the mother and the sons, but that she was unable to influence the subconscious processes, and that it was pointless continuing with the psychotherapy (see paragraph 94 of the judgment).

 

Moreover, it should also be noted that the children were not left without treatment. The father first sent the children to Dr J.Š., a clinical psychiatrist, who submitted reports on 27 August 2010, 23 September 2010, 11 January 2011 and 22 August 2011 (see paragraphs 37, 43, 45 and 57 of the judgment). Soon after 27 April 2012, at the suggestion of the supervising officer, the father started to take the children to Dr D.B., another psychiatrist, with the specific aim of overcoming their emotional and psychological difficulties and easing their resistance towards their mother (see paragraph 63 of the judgment). That psychiatrist submitted reports on 17 July 2012 and 10 September 2012 (see paragraphs 68 and 70 of the judgment). In March 2013, the father stopped taking the children regularly to Dr D.B., apparently because the children cried during the therapy sessions and Dr D.B. herself was of the opinion that she could not achieve anything (see paragraphs 73, 74 and 79 of the judgment). As of 4 December 2014 the father took the children for family therapy to a family counselling centre, which counselling was monitored by the Split Social Welfare Centre (see paragraph 85 of the judgment).

 

This short summary discloses a series of unsuccessful attempts at arranging meetings between the applicant and her children, and various measures to achieve a better outcome. All in vain.

 

5.  We consider that the social welfare authorities and the courts are not necessarily able to solve all inter-personal problems. In this case, they were confronted with a family drama, involving a great deal of hysteria on the part of the children. Conscious of the fact that the application of 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 children (see, among other authorities, Nuutinen, cited above, § 128; Ball, cited above, § 48; and Ribić, cited above, § 95), the authorities opted for a “soft” approach, exploring ways to improve the boys’ attitude. There is, in our opinion, nothing intrinsically wrong with such an approach.

 

The competent authorities enjoyed a margin of appreciation with regard to the measures to be taken. They were almost constantly searching for solutions. It is true that some delays occurred. However, these delays seem to be at least partly the result of the absence of an obvious solution that would be effective and at the same time acceptable to all concerned. The conduct of the authorities closely resembled a trial-and-error scenario.

 

As the majority note, there may be situations where maintaining a child’s ties with its family is not in the child’s best interests, as this would harm its health and development (see paragraph 143 of the judgment). It was, in our opinion, within the authorities’ discretion to consider that it was at no point in the children’s best interests to force them, through a therapy or otherwise, to adopt a different attitude towards their mother.

 

We should be careful not to judge with the benefit of hindsight. We believe that even now it is impossible to say what the authorities should have done to get out of the deadlock. We therefore cannot conclude that they failed to adopt all the measures that could reasonably be expected of them.

       

 




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[1] That is almost a four-hour ride by car.