(European Court of Human Rights, 2 February 2016)
Private law children – Residence – Children moved to live with maternal family after mother died and father in poor mental health – Court ordered transfer of residence to father after his health improved – Representation of the children – Whether a return to the children was in the best interests of the children with regard to Art 8, European Convention
The European Court of Human Rights held that the order returning the children to the care of their father had violated their Art 8, European Convention rights.
The three children moved to live with the maternal aunt after their mother died. The father suffered from psychiatric and behavioural difficulties and was convicted of drug offences. The father's drug addiction subsequently went into remission and his mental health improved. He reportedly posed no threat either to himself or people around him.
The father initiated proceedings seeking the return of the children. Interim contact was set up on a supervised basis. However, after contact began the children were taken to a paediatric hospital where, following psychological examination, all three were diagnosed with separation anxiety disorder. It was noted that all three children had a negative attitude towards their father and a range of fears with respect to him. According to the medical report, they also displayed severe anxiety as a result of the death of their mother. It was recommended that no change be made to their living environment in order to avoid causing further stress to them.
The psychological evidence was that in view of the emotional stress the boys had suffered as a result of the death of their mother and the fact that their habitual place of residence was that of their maternal grandparents and aunts - it was not advisable for them to return to the father. The questions put to the specialists had been prepared by the lawyer acting on behalf of the maternal family.
The judge ordered that the children be returned to their father. Taking into account the father's latest medical report, the court concluded that he was fit to resume his parental responsibilities. The medical report on the children's mental state was dismissed as unreliable; the judge concluded that the experts' conclusions contradicted the factual circumstances and were based on facts which had not been derived from the case file. She further observed that from a psychological point of view the twin boys were ready to be reunited with their father; they were traumatised as a result of the death of their mother and were in need of a relationship with their father.
The appeal by the maternal family was successful and the appeal court referred to the psychological reports according to which the children were in need of a stable and safe environment and any forceful change in that respect could aggravate their already stressful situation.
The Supreme Court remitted the case for reconsideration. The appeal court reversed its decision concluding that the children should be returned to their father and that the maternal family had negatively influenced the children's view of their father. However, attempts to enforce the order had been unsuccessful as the children refused to leave the maternal family. An appeal to the Supreme Court was dismissed. The maternal aunt now applied to the European Court of Human Rights complaining that the Art 8 rights of the children had been violated.
The children were in a vulnerable position and there was no doubt that the aunt had a sufficiently close proximity to them to complain on their behalf. Further, there was no alternative source of representation which would render their aunt's assumption of the role inappropriate or unnecessary. The aunt had standing to lodge an application on behalf of the children.
The ECHR concluded that there had been a violation of the Art 8 rights of the children. It was evident that the children had not been appropriately represented or had their voices heard in the proceedings before the domestic courts. Further, in making a decision in the best interests of the children the domestic courts had failed to take into account the view of the children that they did not want to return to their father. Whatever influence the maternal family had had on the views of the children, the evidence of the hostile attitude held by the children towards their father had been unambiguous. Particular weight had to be given to the psychological evidence which referred to the potential danger to the children's psychological health if they were forced to return to the father. In such circumstances, ordering such a radical measure without considering a proper transition and preparatory measures aimed at assisting the children and their estranged father in rebuilding their relationship appeared to be contrary to their best interests.
CASE OF N.TS. AND OTHERS v. GEORGIA
(Application no. 71776/12)
2 February 2016
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 N.Ts. and Others v. Georgia
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President
Boštjan M. Zupančič
Egidijus Kūris,Iulia Antoanella Motoc
Gabriele Kucsko-Stadlmayer, judges
Fatoş Aracı, Deputy Section Registrar
Having deliberated in private on 12 January 2016
Delivers the following