CASE OF VUJICA v. CROATIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
7. The applicant was born in 1974 and lives in Graz. 8. On 7 March 1997 she married Mr S.V. in Vienna (Austria). They lived in Vienna until January 2006, when they decided to move to Komletinci (Croatia). 9. Meanwhile, on 3 January 1999 the applicant gave birth to their daughter, E.V, on 6 June 2001 to their son, F.V., and on 21 January 2006 to their second daughter, L.V. 10. On 6 January 2009 the applicant and S.V. separated. He remained in Croatia, whereas the applicant returned to Austria. 11. Following her arrival in Austria the applicant collected the children from her husband’s parents, who lived in Vienna and with whom the children had been spending the Christmas holidays, and took the children with her to Graz. 12. When the applicant did not return to Croatia, S.V. went to Austria with a view to taking the children back to Croatia. However, the applicant opposed that. The children therefore remained in Graz where the applicant enrolled the two older children in school and the youngest child in kindergarten. S.V. maintained contact with the children by talking to them over the phone and by visiting them occasionally. It would appear that the applicant and S.V. eventually agreed that the children would remain in Austria but would spend holidays with their father in Croatia. 13. In August 2010, after the summer holidays, which the children spent with their father and paternal grandparents in Croatia, the father refused to return them to the applicant, claiming that the children had refused to go back to Austria. 14. In September 2010, relying on the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter: “the Hague Convention”, see paragraph 54 below), the applicant asked the Austrian Ministry of Justice, as the Austrian Central Authority within the meaning of that Convention, to return her children. The Ministry of Justice immediately contacted the Croatian Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) as the Croatian Central Authority. 15. By a letter of 23 September 2010 the Ministry of Health and Social Welfare forwarded the applicant’s request to the Vinkovci Municipal Court (Općinski sud u Vinkovcima). 16. A copy of the Ministry’s letter of 23 September 2010 was sent to the Vinkovci Social Welfare Centre (Centar za socijalnu skrb Vinkovci). Pursuant to Article 10 of the Hague Convention (see paragraph 53 below), the latter was invited to mediate with the father the voluntary return of the children to Austria, and to inform the Vinkovci Municipal Court and the Ministry of the results thereof. 17. The Vinkovci Social Welfare Centre interviewed S.V., talked to the children without his presence and carried out an on-site inspection of his home. On 28 October 2010 it replied to the Ministry’s request. The relevant part of that reply reads as follows: “S.V. states that his actions were in accordance with the wishes of his children, who wanted to remain living with him in Croatia. He justifies his current actions by the wish to afford his children a happy life. During the interview on the [premises] of the Centre S.V. did not try to portray [the applicant] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He states that the children wish to remain living with him. He does not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children. ... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live], where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security. It was further established that E.V. and F.V. had frequently changed school and that they had started the new school year by going to an elementary school in Komletinci where, according to the father, they had adapted well. It is not in the children’s interest to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and leaves consequences on the children. It requires them to make additional efforts to adapt to the new environment and the school and to make new friends. Given that the children’s mother had in the meantime lodged an application for the return of her wrongfully retained children from Croatia, the Centre conducted an interview with the children on its premises without the presence of the father. Their wish is that their parents live together, as most children in their situation do. They are aware that the parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They like the life in the countryside, in Komletinci. The life in Austria is very different from the life in Komletinci. In Komletinci they have more free time, and meet and play with other children of their age. The pace of life in Austria makes that impossible. Here they are very well accepted in school. They know their neighbours and other children of their age. In the light of the foregoing [the Centre] found that it would be in the children’s interest to continue living with their father in Komletinci. In accordance with that [view] the Centre has submitted the opinion of a psychologist and a social worker to the Vinkovci Municipal Court.” 18. Non-contentious proceedings for the return of the children were instituted on 7 October 2010, that is, on the date the Ministry’s letter of 23 September 2010 forwarding the applicant’s request under the Hague Convention to the Vinkovci Municipal Court (see paragraph 15 above) was received at that court. The Vinkovci Social Welfare Centre participated in those proceedings as an independent intervener sui generis with a view to protecting the children’s interests. 19. During the proceedings the court decided to obtain and consult the report of the social welfare centre prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 33-35 below). On 4 November 2010 the report was received at the court. 20. At a hearing held at 11 a.m. on 19 November 2010 the applicant’s representative argued that the retention of the three children by their father in Croatia had been wrongful and that they should be returned forthwith. She averred that the fact that the social welfare centre had submitted a report in the parallel civil proceedings for divorce and child custody should have no bearing in the present proceedings as the Hague Convention did not provide for exceptions from the obligation to promptly return the children. She also stated that the applicant’s right to equality in the proceedings had been breached because, even though she was fluent in Croatian as her parents were of Croatian origin, she had not been invited by the Vinkovci Social Welfare Centre to participate in the family assessment procedure leading to its report. 21. S.V.’s representative invited the court to dismiss the applicant’s request. She argued that the retention of the children had not been wrongful and that in any event S.V. could not have forced the children to return to their mother against their wishes. In particular, the children had clearly communicated their wishes not to return to Austria to the employees of the social welfare centre and had even told their father that they would run away if returned, which suggested that the return would have caused them psychological trauma. Furthermore, while it was true that the report of the social welfare centre was prepared in the context of the parallel civil proceedings for the purposes of deciding on custody of the children, its findings, which had suggested that the children did not want to return to Austria, could not be ignored in the present proceedings. 22. The representative of the Vinkovci Social Welfare Centre agreed with S.V.’s representative that the applicant’s request should be dismissed and that the children’s retention had not been wrongful. She submitted that the children had been interviewed by the employees of the centre first together and then individually, and that they had stated that they did not like the life in Austria and wanted to live in Croatia. 23. In her reply the applicant’s representative stated as follows: “... especially the youngest child of the parties L.V., who is only four years old, is very attached to her mother, and has expressed a wish to return with her to Austria. As regards the two older children, what should primarily be taken into account, given their age, are their [best] interests and not just where they wish to live. In any event, this cannot have an impact on the decision making in this case having regard to Article 16 of the [Hague] Convention.” 24. At the same hearing the court heard both parties. The applicant in her testimony stated that in mid-August 2010 S.V. had called her to tell her that he would not be returning the children to Austria because they did not want that. The applicant further testified that on that occasion she had spoken with the children over the phone and that the two older children had told her that they indeed did not want to return to Austria, whereas the youngest child had expressed the wish to return. The applicant also stated that she had not seen her children from the time their father had retained them in Croatia until the day before the hearing. 25. From S.V.’s testimony it followed that the youngest child, L.V., was indecisive as to which parent she wanted to live with. In his own words: “L.V. is [still] small and at times she wants to live with her mother, and every now and then with me.” 26. At the same hearing, on 19 November 2010, the Vinkovci Municipal Court delivered a decision whereby it dismissed the applicant’s request. In so doing it relied on the report of the Vinkovci Social Welfare Centre, which included the opinions of a social worker and a psychologist employed with the centre and which had been prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 19 and 33-35 below). The relevant part of that decision read as follows: “The petitioner ... maintains her request that her children be returned to Austria where they had the last domicile, that is, their habitual residence and where they went to school. The fact that the social welfare centre gave its opinion in the [parallel] civil proceedings for divorce [and child custody] is of no relevance for reaching a decision in these [return] proceedings because the Republic of Croatia, as a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, is bound to honour the provisions of that Convention. The counterparty ... in his reply opposes the [petitioner’s] request, considering that the conditions prescribed in the Hague Convention had not been met in the present case. In particular, in order for the Hague Convention to apply, the children had to have been wrongfully removed or wrongfully retained and the right of custody had to have been breached. The law did not attribute the right of custody to the petitioner, nor had she been awarded that right by a judicial or administrative decision or an agreement equal to such decisions. Hence, the petitioner herself does not have the right of custody any more than the counterparty himself, given that the divorce proceedings, where [the issue of] custody is being examined, are still pending before this court. He also invokes Article 13 paragraph 1 (b) [of the Hague Convention] which provides that the court is not bound to order the return of a child if it establishes that the return would expose the child to, inter alia, psychological harm, and that it may also refuse to do so if the child objects to being returned. The representative of the Vinkovci Social Welfare Centre in her observations considers that the present case does not concern wrongful retention of children because the Centre had, even before the petitioner submitted her request, been involved in the social anamnesis of the family [i.e. family assessment]. Namely, the children’s father had addressed the Centre when in 2009, during a visit of the children to his parents in Austria, the spouses had separated, that is to say, when the petitioner had left [him], gone to Austria, taken the children, retained them and enrolled them in a school in Austria. The father, in order to protect the interests of the children, had decided not to take certain steps [to return them] but had instead visited the children in Austria as much as he could. When the children this summer had come to Croatia with his parents, they had not wanted to go back to Austria. The father had then sought advice from the Centre, which had advised him that he should not return the children to their mother by force. After that, he had filed for divorce, whereas the petitioner had lodged a request for the return of wrongfully retained children. In the proceedings conducted before the Vinkovci Social Welfare Centre, the children were heard, all three of them together and then individually, and they expressed the wish to live in Croatia. Therefore, the representative of the Social Welfare Centre considers that, in order to protect the children’s interests and well-being, it is necessary to dismiss the petitioner’s request as unfounded. ... In these proceedings, instituted following the request of the petitioner for the return of the children, the court has to apply the Ratification of the Hague Convention (Civil Aspects of International Child Abduction) Act. Section 12(2) of that Act provides that the court will refuse to order the return of a child if he or she is settled in the new environment. According to evidence taken, it was established that the parties married on 7 March 1997 in Austria, in Vienna. During the marriage, E.V. was born on 3 January 1999, F.V. on 6 June 2001 and L.V. on 21 January 2006. The parties came with their three children to live in Croatia, in Komletinci. In the acrimony during the [2008] Christmas holidays [the petitioner] verbalised the wish to end their life together. [She] left the common household and went to live in Austria. At that time the children were in Austria, visiting their paternal grandparents. Upon her arrival in Austria the petitioner immediately went to collect the children and did not allow the father to take them back to Croatia, even though the children wanted to go to Croatia and had to finish another school term [there]. [In] summer [2010] the children, together with their paternal grandparents, came to [Croatia to] spend three weeks of their summer holidays at the seaside. After returning from the seaside, the children came to live in Komletinci. According to the counterparty’s statement, which the petitioner acknowledged, the two older children had refused to return to Austria, expressing the wish to stay in Komletinci. From the enclosed certificates of domicile issued by the [police authorities] it was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. Therefore, the petitioner’s arguments that the children have registered domicile only in Austria are incorrect. In the present case the court has not yet rendered a final decision in the [parallel civil] proceedings [for divorce and child custody]. However, that does not affect the adoption of the decision on the request for the return of the children on the basis of the Hague Convention on the Civil Aspects of International Child Abduction. It is the opinion of this court that the father did not, without the knowledge and approval of the mother, abduct the children from the living environment in which they were settled. It is to be noted that the children have previously lived in Komletinci, that E.V. finished the second grade of the elementary school in Komletinci where she went to school until the first semester of the third grade, and that F.V. also attended the first grade in the school in Komletinci. It therefore follows that the children were retained in the place where they previously used to live. This school year E.V. and F.V. are again attending the elementary school in Komletinci. From the opinion of the psychologist at the Vinkovci Social Welfare Centre it undoubtedly follows that it is not in the children’s interests to change school again because they would have to re-adapt to [new] teachers, curriculum, schoolmates, etc. From the opinion submitted it is evident that the children have adapted to their current living environment and school setting, and that they have verbalised the wish to live with their father. Given all the aforementioned [considerations], this court, relying on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the Hague Convention on the Civil Aspects of International Child Abduction, refuses to order the return of the children, finding that the children have adapted without any problems to the environment in which they had previously lived and that, in the given circumstances, returning them to the mother in Austria would place them in an unfavourable position and expose them to psychological trauma, which certainly cannot be to their benefit. It is also to be noted that the children themselves, especially the two older children, object to being returned to Austria. Having regard to all the above, this court decides as [indicated] in the operative part.” 27. On 30 November 2010 the applicant appealed against the first-instance decision. 28. On 24 February 2011 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision, which thereby became final. The second-instance decision was served on the applicant’s representative on 17 March 2011. The relevant part of that decision reads as follows: “The appellant claims that the aim of the [Hague] Convention is the prompt return of children to the country of their habitual residence, and that what is protected is the last status of the children. In the appellant’s opinion it was necessary to apply exclusively Article 12 paragraph 1 of the said Convention and order the children’s return forthwith. ... The appeal is unfounded. ... It was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. The first-instance court correctly found that the father did not without the knowledge and approval of the mother abduct the children from the living environment where they were settled because the children have previously lived in Komletinci, [where] E.V. finished the second grade of elementary school ... and F.V. attended the first grade ... The first-instance court relied on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the [Hague] Convention. As rightly pointed out by the appellant, the first-instance court had erred in relying on Article 12 paragraph 2 of that Convention because the children had been brought to Croatia at the beginning of July 2010, whereas the proceedings [for the return of children] were instituted in September 2010, that is, before the expiration of the period of one year referred to in paragraph 1 of Article 12 of the [Hague] Convention. However, this second-instance court finds that the first-instance court correctly applied Article 13 paragraph 1 (a) and (b) of the [Hague] Convention, and, in the opinion of this court, also paragraph 2 of that Article because the two older children, whose views it is appropriate to take into account given their age, object to being returned. Since the children have already adapted to life in the environment (in which they have previously lived – before going to Austria) there is a grave risk that their return would expose them to psychological trauma. The change of school would have traumatising effects on the two older children if, during the school year, they were to be transferred to Austria, where the curriculum is completely different. For these reasons the appeal is dismissed and the first-instance decision upheld.” 29. On 15 April 2011, the applicant lodged a constitutional complaint alleging, inter alia, that her constitutional right to a fair hearing and to respect for her family life, guaranteed by Article 29 paragraph 1 and Article 35 of the Croatian Constitution (see paragraph 51 below), had been violated. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows: “[The complainant] considers that the [constitutional] rights guaranteed in Articles 14 paragraph 2, 16, 26, 29 paragraph 1, 35, 62, 63 and 140 of the Constitution have been breached by the contested decision of the lower-instance courts. ... Having regard to the arguments raised in the constitutional complaint the Constitutional Court examined the contested decisions under Article 29 paragraph 1 and Article 63 of the Constitution. ... Having regard to the opinion of the Vinkovci Social Welfare Centre ... and the fact that both older children ... (E.V. and F.V.) expressed the wish as to where and with which parent they wanted to continue living after [their parents’] divorce, and that they refuse to be separated from their father, the Constitutional Court finds that the competent courts rendered the contested decisions by correctly assessing all the particular circumstances of the present case.” 30. Meanwhile, on 27 August 2010 S.V. brought a civil action against the applicant in the Vinkovci Municipal Court seeking: (a) divorce; (b) the right to have their children living with him (hereafter: “custody”); and (c) maintenance for the children. As in the above-mentioned proceedings for the return of children (see paragraph 18 above), the Vinkovci Social Welfare Centre also participated in these proceedings as an independent intervener sui generis with a view to protecting the children’s interests. 31. On 30 August 2010 the court invited the Vinkovci Social Welfare Centre to submit a report on the financial and family situation of the parties and to give its opinion on the issue of which parent the children would prefer to live with and on the contacts with the other parent. 32. On 17 December 2010 the applicant responded to S.V.’s action. In her response she agreed to the divorce, contested S.V.’s claim for custody and proposed instead that she be granted custody. 33. After having interviewed the children and S.V., and having carried out an inspection of his home on 20 October 2010, the Vinkovci Social Welfare Centre submitted its report to the court on 28 October 2010. The report consisted of the opinion of a social worker and the opinion of a psychologist, who were both employed at the centre. 34. The relevant part of the opinion of the social worker reads as follows: “[S.V.] justifies his current actions by his wish to afford his children a happy life. During the interview he repeatedly stated that after spending the summer holidays in Croatia, the children expressed the wish not to return to Austria any more. He did not stop his wife coming and seeing the children but she never came ... During the interview he did not try to portray [her] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He stated that that the children wished to remain living with him. He did not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children. ... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live] where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security. It is evident that E.V. and F.V. have frequently changed school and that they started the new school year by going to the elementary school in Komletinci where, according to their father, they have adapted well. It is not in the interest of the children to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and has consequences on the children. That requires additional efforts from the children to adapt to the new environment, [the new] school and to make new friends. Given that the children’s mother lives in Austria ... employees of this Social Welfare Centre had no possibility to examine and establish [her] housing conditions and family situation and assess [them] and [thus] could not give an opinion on the possibility of contacts between the mother and the children at her place of residence in Austria. Having regard to the foregoing, I am of the opinion that E.V., F.V. and L.V. should continue living with their father ...” 35. The relevant part of the opinion of the centre’s psychologist reads as follows: “This opinion was prepared on the basis of a psychological interview with S.V. as well as on the basis of psychological examination of the children and the perusal of the documents available at the Centre. ... An interview with the children was conducted. Their wish is that their parents live together, as most children in their situation do. They are aware that their parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They especially like the life in Komletinci, that is, in a smaller community. The life in Austria differs to a significant degree from the life here. They have more free time, [and] meet with children of their age. They spend their free time playing, which is not the case in Austria, not because one of the parents would prohibit or prevent them from doing so but because the pace of life is such. The parents and the children are not at home during the day because they work and the children go to school, so they spend very little time together, which means a lot to the children. Here they are well accepted in school, they know the neighbours and generally the social network (teachers, neighbours, children of their age) works better. Moreover, it is not in the children’s interest to change school anew, which is stressful because the children have to re-adapt to teachers, the curriculum and [find new] friends. I am of the opinion that the children should remain living with their father given that S.V. adequately takes care of their needs as well as of their education and upbringing. At the same time, the children verbalise their wish to live with their father.” 36. As the applicant did not oppose the divorce, at the hearing held on 18 November 2010 the court ruled that S.V.’s civil action was to be considered a joint petition for divorce. At the same hearing the applicant and S.V. asked the court to adjourn the hearing so that they could agree on the issues of child custody, access rights of the non-custodial parent and maintenance. 37. At the hearing held at 1 p.m. the next day, 19 November 2010, that is, two hours after the hearing in the above-mentioned proceedings concerning the return of children (see paragraph 20 above), the parties informed the court that they had agreed that the two older children would live with their father but that they could not reach an agreement on custody of their youngest child, L.V. 38. The applicant’s representative stressed that it was in L.V.’s interest, as she was only four and a half years old at the time, to live with her mother, to whom she was emotionally attached and with whom she had expressed the wish to live. She added that at that age the role of the mother was very important. Lastly, the applicant’s representative reiterated that the applicant had not been involved in the family assessment procedure carried out by the Vinkovci Social Welfare Centre, resulting in its report. In particular, she had not been interviewed or otherwise examined by its staff (see paragraph 20 above). She therefore invited the court to obtain a joint expert opinion from a psychologist and a psychiatrist with a view to establishing whether it was in L.V.’s best interests to live with her mother or with her father. 39. The representative of the social welfare centre stated that the applicant had not been involved in the family assessment procedure because she was a foreign national who lived abroad. After reiterating the findings made in the centre’s report (see paragraphs 33-35 above), she added that the children were very emotionally attached to each other and it was therefore not advisable to separate them. 40. S.V.’s representative argued that the court should respect the professional opinions expressed in the social welfare centre’s report and that the children should not be separated. She added that her client was willing to allow the applicant to have longer and more frequent contacts with L.V., given that she was not burdened by school obligations. Lastly, S.V.’s representative opposed the proposal to obtain a joint expert opinion (see paragraph 38 above) as it was not disputed between the parties that they were both capable of adequately taking care of the children. 41. After hearing the representatives of the parties and of the social welfare centre as the intervener, the Municipal Court at the same hearing first rejected the proposal by the applicant’s representative to obtain a joint expert opinion, and then pronounced a judgment whereby it: (a) divorced the marriage between the applicant and S.V.; (b) decided that all three children were to live with S.V.; (c) granted the applicant access (contact) rights; and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for their children. In particular, the court decided that the applicant should exercise her access rights by taking the children to her home in Austria on the last weekend of every month (or any other weekend if the parties agreed otherwise), as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably. 42. In deciding on the issue of child custody, the court relied on the report of the social welfare centre (see paragraphs 33-35). The relevant part of that judgment reads as follows: “The court rejected the second petitioner’s [the defendant’s] proposal to take evidence by obtaining a joint expert opinion from experts in psychology and psychiatry because it is undisputed between the parties that they both satisfy the conditions for assuming parental responsibility, with which the court agrees. Given that on the basis of the evidence taken it can reach a decision on the merits even without the proposed evidence, which would indicate whether the parents are fit to take care of the children, the court considered [obtaining] the opinion of an expert in psychiatry unnecessary and [thus] rejected that proposal, having regard to section 10(1) of the Civil Procedure Act which requires that [the civil] proceedings be conducted without delays and with the least cost. ... As regards their minor children, E.V. and F.V., the parties reached an agreement that they would live with their father. However, the mother argued that it was in the [best] interests of [their younger daughter] L.V., who is four years old, to live with her as she was emotionally attached to her [mother]. From the report of the social welfare centre it follows that the children wish, as do most children in their situation, the parents to live together in a harmonious relationship, that they are aware of the fact that their father and mother are divorcing, and that they are not taking the side of [either] the father or the mother. However, they expressed the wish to live with their father because they see their relationship with their father as much closer and are more emotionally attached to him. Furthermore, it follows from the report that the children like their life in Komletinci, that is, [a life] in a smaller community where they have more free time, socialise with other children of their age [and] spend their free time playing, which is not the case in Austria. It further follows from the report that the children are well accepted in school and that it is not in the children’s best interests to change school again, which is considered stressful as they would again have to adjust to [new] teachers, curriculum and schoolmates. Therefore, in the opinion of the social welfare centre, the children should remain living with their father given that he adequately takes care of their needs, their upbringing and education and that, at the same time, the children have verbalised the wish to live with their father. At the hearing ... the representative of the social welfare centre stated that she maintained the opinion provided [in the report of the social welfare centre] and reiterated that the children were very attached to each other and that it would not be advisable to separate them. The first petitioner [the plaintiff] stated at the same hearing that he did not dispute that the mother met the conditions to be awarded custody of the children but that he considered that it would be in the best interests of the children to live together, which was what the children wanted, and that he was willing to allow the second petitioner [the defendant] to maintain more extensive contact with L.V. given that she was not burdened by school obligations. When awarding custody it has to be taken into account that brothers and sisters with existing emotional connections should not be separated unless that is their wish or in their best interests. Given that according to the report of the social welfare centre the children have verbalised the wish to live together, the court, promoting the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, has decided to award custody to their father. When deciding on the mother’s access (contact) rights, the court has, having regard to the agreement of the parties that the mother shall exercise those rights in the manner proposed by the social welfare centre, but so that the mother takes the children to her home in Austria, [decided] that [she should have contact with the children] on the last weekend of every month or any other weekend if the parties agree otherwise, as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably.” 43. On the same day the applicant and S.V. signed a written agreement (hereinafter: “interim custody agreement”) regulating the applicant’s access rights in the period until the first-instance judgment became final. They agreed that in that period the applicant would exercise her access rights according to the visiting schedule set forth in the first-instance judgment. In addition, the parties agreed that the applicant would immediately take their youngest daughter, L.V., with her to Austria and return her to S.V. on 9 January 2011. However, on 9 January 2011 the applicant did not return their youngest child to S.V., but retained her in Austria. 44. Meanwhile, on 17 December 2010 the applicant appealed against the first-instance judgment. She argued that: (a) under Article 16 of the Hague Convention (see paragraph 54 below) the first-instance court was not allowed to proceed until the adoption of the final decision in the proceedings for the return of children; (b) the first-instance court had not referred S.V. and her to the mandatory mediation procedure before divorce, contrary to section 44 of the Family Act (see paragraph 52 below); and (c) she had not participated in the family assessment procedure carried out by the social welfare centre. The applicant also reiterated her earlier argument that her younger daughter, L.V., was emotionally attached to her and was at an age when it was in her best interests to live with her mother, as her separation from the mother would be more detrimental than separation from her siblings. As regards her two older children, the applicant emphasised that if they really wanted to remain living with their father in Croatia, she was prepared to respect that wish. However, the decision on their custody should not have been made before the decision in the return proceedings. 45. By a judgment of 23 February 2011 the Vukovar County Court dismissed an appeal lodged by the applicant and upheld the first-instance judgment, which thereby became final. The second-instance judgment was served on the applicant’s representative on 16 March 2011. The relevant part of that judgment reads as follows: “In her appeal the appellant argues that ... the [first-instance] court was not allowed to proceed in these [civil] proceedings until the final resolution of the [non-contentious] proceedings for the return of wrongfully retained children pending before the same court, in accordance with Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction. The purpose of that Convention was that children were returned to the State from which they had been abducted. Only then should proceedings for custody have been conducted, given that the children had been uprooted from the milieu in which they had lived hitherto. [The appellant] also argues that she did not participate in the [family assessment] carried out by the Vinkovci Social Welfare centre. She considers that the youngest child L.V. was very emotionally attached to her and that the [first-instance] court should have taken that into account. ... As the parties, however, did not agree on custody in respect of their youngest child, L.V., the court, deferring to the opinion of the social welfare centre and respecting the wishes of the children, decided that she should remain living with her father, brother and sister in Komletinci. In particular, during an interview with the expert team of the Vinkovci Social Welfare Centre the children expressed the wish to live with their father because they considered their relationship with the father closer, they liked the life in Komletinci [that is] in a smaller community where they had more free time, spent time with children of their age, spent free time playing which was not the case in Austria, and also because they went to school here where they were well accepted. From the report of the Vinkovci Social Welfare Centre it follows that the children are very attached to each other and that it would not be wise to separate them and change their environment, which corresponds to the children’s wishes. Since the children verbalised the wish to live together and given that L.V. did not yet have school obligations – which made it possible for her to maintain more extensive contacts with her mother, if the parents agreed – the first-instance court, endorsing the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, correctly decided that the children should remain living with their father [while] leaving open the possibility that this decision could be altered if circumstances change. ... The case file also contains certificates of domicile in respect of all the parties’ children from which it is evident that their registered address is in Komletinci since 17 October 2006. In any event, the whole family previously lived together in Komletinci. Having regard to the above, the appellant’s argument that she was prevented from participating in the assessment carried out by the social welfare centre is unfounded because she participated in the proceedings before the [first-instance] court, as did the father, where the representative of the social welfare centre was present and where the parents reached an agreement on the custody [of the children] except L.V. Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contact with their mother, it could not be said that they were abducted or uprooted from the milieu in which they were living, particularly taking into account the wishes of the children and the fact that the two older children go to school in Komletinci.” 46. The applicant then, on 15 April 2011, lodged a constitutional complaint alleging, inter alia, that her constitutional rights to a fair hearing and to respect for her family life, guaranteed by Article 29 § 1 and Article 35 of the Croatian Constitution (see paragraph 51 above) had been violated. 47. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows: “... the report of the Vinkovci Social Welfare Centre of 20 October 2010 and the opinion of a psychologist are enclosed with the case file of the first-instance court. Both [documents] come to the same conclusion that the children of the parties should continue living with their father after the divorce. At the main hearing held in the case on 19 November 2011 both parties proposed that the two older children (E.V. and F.V.) remain living with their father and that [the youngest child] L.V. remain living with her mother – who lodged the constitutional complaint. At that hearing the complainant as the defendant did not ask for the application of the Hague Convention on the Civil Aspects of International Child Abduction. ... The Constitutional Court considers that in every [set of] proceedings concerning custody of children the best interests of the child must be a primary consideration. ... The Constitutional Court finds that ... the Vinkovci Social Welfare Centre undertook the necessary steps before adopting the report concerning custody of the children. The proposal expressed in the report of the Social Welfare Centre that all three children should continue living with their father after the divorce is, after all, in line with the opinion of the psychologist. The proposal was based on the fact that both older children (E.L. and F.L.) had expressed the wish as to which parent they wanted to live with, whereas as regards the [youngest child] L.V. it was established that she was ‘still at an age where she does not completely understand her parents’ situation, that all three children were very emotionally attached to each other and that, [while] accepting the fact that their parents were divorcing, they wanted to continue living together, with at least one parent. ... In view of the above, the Constitutional Court considers that the constitutional rights provided for in Article 29 paragraph 1 and Article 35 of the Constitution, and the rights guaranteed by Articles 6 and 8 of the European Convention on Human Rights were not breached by the contested decisions. The Constitutional Court also notes that the legal views expressed in the contested judgments ... are primarily based on the best interests of the child and are also founded on the established principles of international law. ... As regards the complainant’s arguments that the Hague Convention on the Civil Aspects of International Child Abduction was applicable in the instant case, the Constitutional Court finds correct the ... reasoning expressed in the contested judgment of the Vukovar County Court, which ... reads: ‘... Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contacts with their mother, it could not be said that they were abducted ...’ ” 48. Given that the applicant did not respect the interim custody agreement of 19 November 2010 (see paragraph 43 above) and did not return L.V. to Croatia on 9 January 2011 but retained her in Austria, on 13 April 2011 S.V., relying on the Hague Convention, requested the Croatian Ministry of Health and Social Welfare, as the Croatian Central Authority, to contact the Austrian Ministry of Justice, as the Austrian Central Authority, with a view to returning L.V. 49. On 11 May 2011 the Graz First-Instance Court instituted proceedings relating to the applicant’s request for return of the children. 50. On 22 September 2011 the Graz First-Instance Court, relying on Article 13 paragraph 1 (b) of the Hague Convention (see paragraph 54 below), dismissed S.V.’s request. It held that returning L.V. to Croatia would expose her to psychological harm or otherwise place her in an intolerable situation. In so deciding it relied on the opinion of an expert in psychology which suggested that separating L.V. from her mother would have devastating consequences. The court added, obiter dictum, that the Vinkovci Municipal Court had breached the Hague Convention when it had decided on custody of the applicant’s three children before a final decision had been delivered on her request for the return of the children.