CASE OF CVETKOVIĆ v. SERBIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1981 and lives in Niš. 6. On 2 February 1999 the applicant gave birth to a daughter, A.C. One year later, she married V.C. (“the respondent”), her daughter’s biological father. 7. On 1 February 2005 V.C. lodged a claim with the Niš Municipal Court, seeking dissolution of the marriage, custody of A.C. and child maintenance. 8. On 16 May 2005 the Niš Social Care Centre granted the applicant interim care and custody of A.C. until the marriage was dissolved. 9. On 23 June 2005, while the applicant and A.C. were visiting a mental care institute where the child was undergoing treatment for her disturbed mental health as a result of her parents’ divorce, V.C. forcibly removed A.C. from the applicant’s custody and, in so doing, assaulted the latter physically, knocking her unconscious. 10. On 25 July 2005 the Niš Municipal Court issued an interim custody order requiring that V.C. surrender custody of A.C. to the applicant until the end of the marriage dissolution proceedings. 11. On 5 August 2005 a bailiff accompanied the applicant to the respondent’s home, requesting that the child be surrendered. The respondent’s father and A.C. were also present. The respondent stated that he would not prevent the mother from seeing her child but refused to hand her over, even if it meant paying a fine, claiming that the applicant could not provide suitable living conditions for A.C. and that A.C. preferred living with him. 12. Faced with the respondent’s failure to comply with the enforcement order, on 12 August 2005 the Niš Municipal Court ordered him to pay a fine in the amount of 10,000 Serbian dinars (RSD; approximately 120 euros (EUR)), within three days and to return the child to her mother by the same deadline. 13. On 18 August 2005 the bailiff again went to the respondent’s home, but there was no one there. On the same day the court contacted the Niš Social Care Centre asking for urgent action, since the applicant alleged that domestic violence was taking place there. 14. On 22 August 2005, the social care centre informed the court that it had advised the applicant and the respondent to visit a mental care institute in order to be provided with appropriate guidance in communicating with each other and in order for the child to resume the interrupted course of treatment. The court was informed that the Doljevac Social Care Centre had taken over responsibility for the case, since that was where the respondent’s residence was located. 15. On 12 September 2005 the Municipal Court ordered the respondent to pay a further fine in the amount of RSD 50,000 (approximately EUR 590) and to return A.C. to her mother. 16. On 15 September 2005 the respondent and his father contacted the court, declaring that the child did not want to go to her mother and refusing to pay the fine. 17. On 20 September 2005 a new attempt was made to enforce the interim order, this time in the presence of a psychologist from the Doljevac Social Care Centre, civilian police officers, the enforcement judge, a bailiff and the applicant. The child started to cry and refused to go with the applicant. The respondent stated that he had spoken with the child, encouraging her to go and live with her mother if she wanted, but the child had refused. The applicant was of the opinion that the child had been given instructions and put under pressure and was in fact strongly attached to her. She wanted to take the child immediately, regardless of her behaviour. The psychologist was against forcible transfer of the custody, claiming that it could have a negative influence on the child’s mental health and lead to autism. The child had already showed some of those symptoms, but they stopped after she had moved into her father’s home, where she had been living for five years. The psychologist proposed that mother and child start to meet under the supervision of the Centre on its premises. She also noted in the minutes that the parents should cease their manipulation of the child. 18. On 3 October 2005 the first meeting between mother and child was held on the premises of the Centre, but the applicant later told the court that it had not been successful because the child was allegedly subjected to pressure by her father. 19. At the next meeting, held on 14 October 2005, the child was constantly holding on to her father, crying and avoiding contact with her mother. The psychologist was not present during the meeting, being on sick leave at the time. After leaving the premises of the Niš Social Care Centre, the applicant and respondent and other persons present started to fight. The respondent’s father allegedly physically attacked the applicant. The court informed the Doljevac Social Care Centre about the incident, seeking advice as to how to proceed further. 20. On 2 March 2006 the applicant asked the court to enforce the interim custody order in the presence of the police. 21. The enforcement of the interim order was to be attempted on 20 March 2006 on the premises of the Niš Social Care Centre in the presence of the judge, a psychologist and a teacher from the Centre, the applicant and the respondent’s representative. The respondent and the child did not appear. The child was allegedly ill. 22. On 29 May 2006 the next enforcement attempt was made. The respondent again failed to appear. According to his representative, he had not been properly summoned. At the hearing, two psychologists were present, one from the Niš Social Care Centre and the other from the Doljevac Social Care Centre. Both gave their opinion concerning the forced return of the child to her mother, the psychologist from Niš contending that it was the only option, since the father was not willing to hand over the child voluntarily, and the psychologist from Doljevac arguing against it, on the basis that it could have a negative influence on the child’s further development. 23. The enforcement attempt scheduled for 13 June 2006 was also postponed due to the absence of the respondent and his representative. 24. On 29 June 2006 the respondent appeared without the child, because she was allegedly sick, but he did not submit any evidence in support of this allegation. Throughout the meeting he claimed that he was willing to hand over the child to the mother but that the child was refusing to cooperate. 25. On 27 July 2006 the court again ordered the respondent to pay a fine in the amount of RSD 20,000 and to return the child to her mother. 26. On 25 December 2006 the court asked the Niš Mental Care Institute to prepare an opinion concerning the enforcement of the interim custody order because of the difficulties encountered in the proceedings. 27. The Niš Mental Care Institute issued an experts’ report on 28 June 2007. The report contained the opinions of a psychologist, a sociologist and a neuropsychiatrist, all of whom had conducted interviews with the child and both her parents. The experts found that the child’s intellectual ability was on the low side and that her emotional and social maturity was underdeveloped as a result of the family situation. They also found that both parents were manipulating the child and not doing what was in her best interests. Their ultimate opinion was that the forcible removal of the child from her father and her current social environment without proper psychological preparation could at that stage provoke certain psychological disorders. The experts advised that the child should receive psychological and social counselling to help her overcome her resistance towards her mother, that the father and his family should be helped to change their attitude and stop influencing the child’s opinion towards her mother, and that both parents should receive counselling on how to behave in the best interests of the child. 28. On 14 January 2008 the Municipal Court ruled in favour of the father. The marriage was thus dissolved, V.C. was granted custody of A.C., and the applicant was ordered to contribute towards her maintenance on a monthly basis. Lastly, the court held that the applicant was entitled to spend time with A.C. on the premises of the Doljevac Social Care Centre every Saturday between 10.00 a.m. and 12.00 a.m. until such time as a different access arrangement might be warranted. 29. On 12 June 2008 and 28 May 2009 the Niš District Court and the Supreme Court of Serbia upheld the Municipal Court’s judgment at second and third instance, respectively. 30. All of the above-mentioned courts reasoned that, “notwithstanding her earlier forcible removal from ... [the applicant’s custody] ...”, it was in the best interests of A.C. to remain with her father since a separation could prove psychologically detrimental. In support of this conclusion, the courts referred to a separate opinion drafted by the Doljevac Social Care Centre, in addition to an expert’s report, stating that it would indeed be advisable for A.C. to remain in the environment to which she had become accustomed, where she was surrounded by love and care, and where she had made social connections (see paragraph 27 above). 31. In addition, the Supreme Court found that there was no evidence that the respondent had committed acts of violence against the child or the applicant. 32. On 8 September 2008 the Municipal Court suspended the interim custody proceedings. 33. The applicant never sought enforcement of the judgment of 14 January 2008 as regards the weekly meetings with the child. 34. On 16 March 2010 the applicant lodged an appeal with the Constitutional Court, alleging a breach of her parental and family rights, essentially complaining about the non-enforcement of the Municipal Court’s interim custody order of 25 July 2005. She also argued that the Supreme Court’s ultimate ruling on the issue of A.C.’s custody had failed to take into account the child’s best interests and had instead retroactively endorsed V.C.’s violent and unlawful conduct and had permanently separated her from her child. 35. On 15 March 2012 the Constitutional Court dismissed the complaint regarding the interim custody order of 25 July 2005 for being out of time, having been lodged more than 30 days after the applicant had been served with the District Court’s judgment of 12 June 2008. With respect to the applicant’s complaint regarding the Supreme Court, the Constitutional Court rejected it on the merits, accepting the Supreme Court’s reasoning entirely. 36. On 19 October 2007 the Niš Municipal Court found V.C. guilty of unlawfully removing A.C. from the applicant’s custody and sentenced him to six months’ imprisonment, suspended for a period of two years. The respondent was ordered to return the child to the applicant within fifteen days of the date on which the judgment became final. This judgment was upheld by the Niš District Court on 8 April 2008. 37. On 18 August 2008, acting upon the applicant’s initiative, the Niš municipal public prosecutor requested the revocation of the respondent’s probation, but withdrew the request on 16 December 2008 because the respondent had in the meantime been granted custody of A.C. On 25 December 2008 the Municipal Court terminated the proceedings seeking revocation of the probation. 38. Following the applicant’s claim for review of the judgment of 14 January 2008, on 12 October 2012 the Niš Municipal Court granted the applicant custody of A.C. and ordered V.C. to contribute towards her maintenance on a monthly basis. In its reasoning the court explained that A.C. had stated that she now wanted to live with the applicant and that V.C. himself no longer had any objections to this arrangement. This judgment became both final and enforceable on 10 November 2012 and A.C. moved to the applicant’s flat shortly thereafter. 39. In July 2013 the Niš Public Prosecutor’s Office received a criminal complaint that had been lodged against V.C. for failure to make maintenance payments. 40. It would appear that the applicant re-established contact with her daughter on 19 August 2012, that is to say after a period of seven years, and soon afterwards A.C. went to live with the applicant. However, it seems from the documents submitted by the Government that the mother-daughter relationship was not well re-established. A.C. kept returning to her father whenever she had a misunderstanding with her mother. She even gave a statement to the police to the effect that her mother was maltreating her. 41. On 27 August 2015 A.C. moved to her father’s home and it appears that she is still living with him by choice. It would also appear that the respondent filed a claim for review of the judgment of 12 October 2012 on custody of A.C. and that those proceedings are still pending.