(European Court of Human Rights; 25 November 2008)
When the children's parents died, the maternal uncle and his wife took temporary custody of the children, then aged 4 and 6 months. Some time later the paternal grandparents applied to adopt the children; in response the uncle and wife also applied to adopt the children. Eventually, over 30 months later, notwithstanding the express wish of the elder child, then 7 years old, to remain with the uncle and aunt, whom she regarded as her parents, the courts awarded permanent custody of the children to the grandparents, on the basis that the grandparents had better financial and living conditions. After all appeal routes had been exhausted, the younger child went to live with the grandparents, but the elder child refused to leave the uncle and aunt's home, even when the bailiff attempted to enforce the custody decision. Over a year later the court granted permanent custody of the elder child to the uncle and aunt, and permanent custody of the younger child to the grandparents. The uncle and aunt complained that the decision-making process had breached their human rights.
The Lithuanian court had had to determine a factual question of crucial importance, a question that involved the assessment of character as well as the motives and wishes of the children. When evaluations of this kind played such a significant role, and the outcome could be of major detriment to the applicants, it was essential that the appellate court should hold a hearing and afford applicants the right to be heard and fully participate in the hearing, rather than relying on a written procedure. There had been a violation of Art 8.