CASE OF JUCIUS AND JUCIUVIENĖ v. LITHUANIA
Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The first applicant is a Lithuanian national who was born in 1966. The second applicant, his wife, is a Lithuanian national who was born in 1967. They live together in Mažeikiai and have two children. 6. In April 1999 the first applicant’s sister, SJ, and her partner, DŠ (senior), died, and the applicants were appointed as temporary custodians of the deceased couple’s daughters - RŠ, aged four, and DŠ, aged six months. 7. On an unspecified date in 1999 the paternal grandparents, SŠ and VŠ, applied to a court to adopt RŠ and DŠ. The applicants submitted a counter-claim for the adoption. On 22 December 1999 the Mažeikiai District Court accepted the grandparents’ claim, recognising RŠ and DŠ as their adopted children. On 27 March 2000 the Šiauliai Regional Court upheld that decision. On 14 June 2000 the Supreme Court quashed the lower decisions, remitting the case for a fresh examination at first instance. 8. On 17 July 2001 the Mažeikiai District Court partly granted the claim of SŠ and VŠ, by recognising DŠ (then two years) as their adopted daughter. However, it recognised RŠ (then six years old) as the adopted daughter of the applicants. The applicants and the grandparents were ordered by the court to ensure that there were no obstacles that would prevent RŠ and DŠ from communicating with the applicants as well as with their grandparents. 9. On 8 March 2002 the Šiauliai Regional Court quashed the decision, dismissing both adoption applications. The court considered that the dispute between the two couples could be resolved without an adoption, but by a grant of permanent custody. 10. On 28 August 2002 the Mažeikiai District Court appointed SŠ and VŠ as the permanent custodians of the two girls. The court reached this decision on account of the better financial and living conditions of the grandparents compared to the applicants, as well as the fact that SŠ and VŠ were closer blood relatives to the girls. Noting RŠ’s young age (then seven years old) and her “emotional instability” when expressing herself in front of officials, the court rejected her express wish to live with her “mother” and “father” (the applicants). The Mažeikiai District Court observed that a child’s wish does not necessarily coincide with its future interests; therefore the court was not bound by RŠ’s opinion. The court took note of the request of the Child Rights Protection Institution to give custody of the girls to the applicants, whom the girls recognised as their “natural family” and who had cared for them since their parents’ death. However, it concluded that the girls were of a young, adaptable age. As RŠ had lived with the applicants for a few years, without any memory of her grandparents’ family, she was unable to understand where she would be better off. 11. The applicants and the Child Rights Protection Institution appealed. On 4 November 2002 the Šiauliai Regional Court confirmed the first-instance reasoning and decision after a written procedure, without an oral hearing of the parties. 12. The applicants and the Child Rights Protection Institution lodged cassation appeals. On 8 November 2002 the President of the Supreme Court suspended the execution of the Mažeikiai District Court’s decision until the cassation appeal could be examined. On 12 February 2003 the Supreme Court held that it had no jurisdiction in child custody cases and dismissed the cassation application. 13. On 21 March 2003, when the bailiff attempted to execute the courts’ decision, RŠ refused to leave the applicants’ home to live with her grandparents. DŠ was taken to the grandparents. 14. On an unspecified date the Prosecutor General, defending the public interest, filed a request to reopen the proceedings. The Telšiai District Court reopened the civil proceedings and, on 8 October 2004, overruled the Mažeikiai District Court’s decision of 28 August 2002. The court granted permanent custody of RŠ to the applicants, who lived in Mažeikiai, and permanent custody of DŠ to the grandparents, who lived in Klaipėda. When deciding to separate the sisters, the court noted the wish of RŠ to stay with the applicants and the wish of DŠ to stay with her grandparents. The court also observed that, since March 2003, the girls had lived separately and were used to their current environments. 15. The grandparents appealed to the Šiauliai Regional Court, which on 22 November 2004 upheld the lower court’s decision. The appellate court was of the opinion that it had been reasonable for the first-instance court to take into consideration the interests of each child and not to consider them as an inseparable unit. The court noted that the children should be provided with the most suitable and best conditions to meet their personal interests in the most advantageous way. Therefore the court found that the principle of not separating siblings had been justifiably overruled. It also held that the principle of placing children within the family had not been violated. The court pointed out that it was not only blood ties which mattered when choosing placements, but also the individuals to whom the child felt closest. 16. On 6 June 2005 the Supreme Court gave a final ruling and upheld the decision of the Šiauliai Regional Court. Agreeing with the reasoning of the lower courts, it observed that during the initial proceedings the Mažeikiai District Court had made a mistake by not giving primary consideration to the wishes of RŠ. The Supreme Court also noted that the evidence in the case showed the existence of a conflict between the two guardianship families. It noted that proper conditions should be created so that the girls could communicate with each other, giving the primary importance of the children’s interests over those of their guardians. This was an obligation for the State authorities to fulfil. 17. The questions related to child custody are regulated by the Civil Code (Civilinis kodeksas), the relevant articles of which read as follows: “1. In considering any question related to a child, the child, if capable of formulating its views, must be heard directly or, where that is impossible, through a representative. Any decisions on such a question must be taken with regard to the child’s wishes unless they are contrary to the child’s interests. In making a decision on the appointment of a child’s guardian/curator or on a child’s adoption, the child’s wishes shall be given paramount consideration ...” “1. The purpose of child custody/curatorship is to ensure the child’s upbringing and care in an environment which would facilitate the child’s growing up, development and progress. 2. Objectives of child custody/curatorship: 1) to appoint for the child a guardian whose duty it will be to take care of the child, bring it up, to represent the child and protect its rights and legitimate interests; 2) to provide the child with living conditions which would be adequate for its age, state of health and development level; 3) to prepare the child for independent life in a family and in society.” “1. The establishment of child custody/curatorship shall be governed by the following principles: 1) first consideration must be given to the interests of the child; 2) priority in becoming the child’s guardians (curators) must be accorded to its close relatives, provided this is in the child’s best interests; 3) the child’s custody/curatorship in a family; 4) non-separation of siblings, except when this is contrary to the child’s interests. ... 3. When child custody/curatorship is established or ended, or a guardian is appointed to a child capable of expressing its views, the child shall be provided an opportunity to be heard and to influence the decision making.” “A child shall be put under permanent custody (curatorship) when: 1) both parents or the single parent of the child are dead...” “1. A child’s guardian/curator shall be selected by taking into consideration his or her personal qualities, state of health, abilities to function as a guardian/curator, relations with the child deprived of parental care, and the interests of the child...” 18. The Law on the Fundamental Protection of the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), insofar as relevant to this case, provides as follows: “Parents, other legal representatives of the child, the State, municipal government, public institutions and other natural and legal persons must abide by the following provisions and principles: 1) the legal interests of the child must always and everywhere be given priority ... 5) no child must be left without a home, minimum funds for subsistence and care or custody...” “1. A child shall have the right to live with its parents or other legal representatives. 2. To separate a child from its parents or its other legal representatives against the will of the child, as well as that of its parents (legal representatives), shall be permitted only in exceptional circumstances, provided for by laws and according to the established procedure, based upon a court decision and when such a separation becomes necessary for the child (striving to avoid danger to the life and health of the child, or it becomes necessary to take measures in relation to its care and upbringing or to protect other important interests of the child).” 19. Under Articles 31222 and 31223 of the Code of Civil Procedure, as in force at the material time, in child custody cases a court was to hold a hearing during which a child could express his or her opinion. Under Article 347 of the Code the parties could bring a separate appeal (atskirąjį skundą) against a decision of a first instance court. Article 349 stipulated that the appellate court would determine such appeals by way of a written procedure. According to Articles 334 and 3501 of the Code, the appellate court, when examining a separate appeal, had a right to examine de novo evidence, as well as evidence which had already been examined by the first instance court. Therefore the appellate court could decide both questions of law and fact.