(European Court of Human Rights, 3 September 2015)
[The judgment and accompanying headnote has now published in Family Law Reports  2 FLR 18
Public law children – Domestic violence – Child alleged physical and psychological abuse by father who had custody – Proceedings to reverse custody order ongoing for 4 years – Whether the State was in breach of Arts 3 and 8 of the European Convention
Please see attached file below for the full judgment.The ECHR found the Croatian authorities had violated the child’s right to Art 8 of the European Convention to failing to conduct an effective investigation into the allegations of abuse and they had violated the mother and child’s right to Art 8 of the European Convention.
When the mother and father of the, now 14-year-old, child separated she initially lived with the mother. However, i 2007 the court granted a divorce and awarded custody to the father and made provisions for contact with the mother.
The parents had an acrimonious relationship and a child protection measure of supervision of the exercise of parental authority had been made aimed at improving communication between the parents and preventing the child from being drawn into their conflict. Both parents had made criminal complaints against each other.
In 2011 it was alleged that the father hit the child after a contact with her mother and that he had been verbally abusive towards her. She was seen by a doctor and a report was given to the police. In her statement to the police the child said she had been subjected to other instances of physical and psychological violence by her father in the previous 3 years. The father was interviewed but the child was returned to his care.
The mother brought proceedings seeking a reversal of the custody order. The child was assessed by a psychologist and a recommendation was made to move her tot he care of the mother to prevent psychological consequences of continuous abuse.
In 2011 the father was charged and pleaded guilty to bodily injury against the child. But attempts to instigate proceedings for child abuse were unsuccessful.
The child continued to live with the father and in 2014 she claimed she had begun self-harming. Proceedings had been ongoing for 4 years and 3 months.
The girl and her mother complained that the State authorities had not complied with their procedural positive obligation under Art 3 and/or Art 8 of the European Convention in that they had refused to prosecute the father for criminal offence of child abuse he had committed against her. They also complained that the domestic authorities had not discharged their positive obligation under either of those Articles in that they had failed to remove the child from the father's care and thus prevent him from committing further violent acts against her.
The allegations made against the father by the child cumulatively reached the threshold of severity required by Art 3 and, therefore, the positive obligation on the State to prevent further ill-treatment was triggered.
The court determined that, in relation to the child, the State had acted in breach of its obligation to conduct effective investigation into allegations of ill-treatment but there had been no violation of the obligation to prevent further ill-treatment.
Having regard to the fact that the State authorities had ignored the child's wishes to live with her mother, taking her best interests as the primary consideration, that she had not yet been heard by a court in proceedings that had lasted too long, separate issues of the child's right to respect for private and family life fell to be determined under Art 8.
The length of the proceedings alone in this instance was sufficient to find that the State had failed to discharge its positive obligation under Art 8 in relation to the mother and child. Furthermore, this was a case which required greater diligence because it involved a traumatised child who had suffered great mental anguish which had resulted in self-harming behaviour.
Both parents had been assessed by the authorities as equally fit to care for the child and in those circumstances domestic law required the child's wishes to be respected where he or she was of sufficient age and degree of maturity. That had not been the case here and there had, therefore, been a violation of the Art 8 rights of the child.
The decision that there had been a violation of Art 3 in respect of the State’s obligation to conduct an effective investigation into the allegations of ill-treatment was made by a majority of 5 votes to 2. Dissenting opinions were provided.
FIRST SECTIONCASE OF M. AND M. v. CROATIA(Application no. 10161/13)
3 September 2015
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 M. and M. v. Croatia
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro, President
Mirjana Lazarova Trajkovska
Julia Laffranque,Paulo Pinto de Albuquerque
Erik Møse,Ksenija Turković, judges
and Søren Nielsen, Section Registrar
Having deliberated in private on 7 July 2015,Delivers the following judgment, which was adopted on that date
M and M v Croatia (Application No. 10161/13)