CASE of N.TS. and OTHERS V. GEORGIA

FOURTH SECTION

CASE OF N.TS. AND OTHERS v. GEORGIA

(Application no. 71776/12)

JUDGMENT

STRASBOURG

2 February 2016

This judgment will become final in the circumstances set out in Article44 §2 of the Convention. It may be subject to editorial revision.

N.TS. AND OTHERS v. GEORGIAJUDGMENT1

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,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.The case originated in an application (no. 71776/12) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by MsN.Ts., acting initially on her own behalf and on that of her nephews, N.B., S.B. and L.B. (“the applicants”),on 2 November 2012. The Chamber decided of its own motion to grant the applicants anonymity pursuant to Rule 47 § 4 of the Rules of Court.

2.The applicantswere represented by Ms N. Jomarjidze, MsT.Abazadze,Ms K. Shubashvili and Ms T. Dekanosidze, lawyers of the Georgian Young Lawyers Association (GYLA). The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.

3.The applicants allegedthat their right to respect for private and family life under Article 8of the Convention had been breached on account of the domestic courts’ decision ordering the return of the children to their father.

4.On 26 March 2014 the application was communicated to the Government. On 2 June 2015, the parties were invited to submit additional observations.

THE FACTS

I.THE CIRCUMSTANCES OF THE CASE

5.Ms N.Ts., is a Georgian national who was born in 1976 and lives in Tbilisi. Her three nephews‒ N.B., and twin boys, S.B. and L.B.– were born in 2002 and 2006 respectively. The facts of the case, as submitted by the applicants, may be summarised as follows.

A.Background information

6.Ms N.Ts.’s sisterstarted a relationship with G.B. in 2000 and the couple moved in together. They had three children, N.B., S.B. and L.B.

7.In 2006 G.B. was convicted of drug abuse and given a five-year suspended sentence. In 2008 he was diagnosed with psychiatric and behavioural disorders. The same year he started methadone substitution treatment (as part of a specialised drug treatment programme). In 2009 G.B. was fined under the Code of Administrative offences for two additional incidents of drug abuse.

8.On 26 November 2009, the mother of the boys died in unrelated circumstances. The boys started living with theiraunts and their maternal grandparents. At the end of December 2009 G.B. requested the return of the boys but the maternal family refused his request.

9.According to his medical file, in February 2010 G.B.’s addiction went into remission; no signs of disintegration of personality were observed and he was considered to be reacting appropriatelyvis-à-vis his surroundings. On 10February 2010 he was diagnosed with an early remission stage. According to the medical report, he did not pose any threat either to himself or to the people surrounding him and was motivated to start a healthy life. According to another medical certificate dated 26 February 2010,G.B.’s central nervous system was not damaged and he was not sufferingfrom any psychiatric pathology.

B.Return proceedings

10.On 5 January 2010 G.B.asked the Tbilisi City Court under Article 1204of the Civil Code to order the return of his sons. On 12 January 2010 the first instance court judge decided to involve the Social Service Agency (“the SSA”) in the proceedings. The court ordered that the case file be forwarded to the SSA, that the latter appoint a representative to protect the boys’ interests, and that the SSA conduct an assessment of the social environment and living conditions of the father and the maternal family.

11.The assessment was conducted by the Vake-Saburtaloregional branch of the SSA. Their representative visited the places of residence of G.B. and the maternal family and conducted conversations with G.B.,the paternal grandparents, several of their neighbours, the maternal family and also a former babysitter of the boys. The social workerconcerned concluded that the living conditions were satisfactory at both locations. As for the boys themselves, she noted the following:

“As regards the children’s interests, they are in need of a caring and safe environment ...Both families should consider the needs of the children and how they can help them with a concerted mutual effort to most easily overcome the psychological trauma they have suffered because of the loss of their mother ...”

12.In parallel, the SSA’sVake-Saburtalo regional branch arranged for a psychological examination of the boys. The psychologist involvedmanaged to see only the twins in the presence of their father and a family friend. She concluded that they both had atwofold attitude towards their father, with warm feelings and love on the one hand and fear on the other hand. She further observed that certain emotional and behavioural problems of the boys were predetermined by their subconscious protest against the lack of a healthy relationship with both families and theincomprehensible situation in which they were living. In conclusion,the psychologist noted that the boys’ stressful situation was being further aggravatedthroughhaving a negative image of their father imposed on them,which could in itself pose a threat to their psychological health and life (“the psychological report of 3March 2010”).

13.In the interim, the Tbilisi City Court issued an interlocutoryorder allowing G.B. to see his children in the presence of two family friends. It is apparent from the case file that after just a few meetings, the third persons refused to participatein further meetings.

14.On 23 April 2010 the boys 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.

15.In addition, on 26 April 2010 specialists from an Institute of Psychology concluded, on the basis of the material in the case file, 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 their father. The questions put to the specialistshad been prepared by the lawyer acting on behalf of the maternal family. The specialists also examined the older boy in person and observed the following:

“...[N. B.] feels frustrated because of the situation he is in and gets easily irritated ... the child is sensitive and seeks relief in a safe environment and in a fantasy world ... he escapes everything that is undesirable for him in order to avoid additional trauma ...

We consider that at this stage a drastic change in [N.B.’s]situation is not advisable, in order to avoid additional irritation and traumatisation of the boy and to allow him rehabilitation in a calm environment. Obviously, it would be useful if he could develop a close relationship with his father and could perceive him as a guardian and protector, but in order to achieve that, in our view, some moretime will be needed. The father should gain his confidence and the child should gradually feel the need to communicate with his father again ...

For the psychological wellbeing of the children ... we consider it necessary to facilitate an appropriate process of readjustmentbetween the father and his children, i.e. for a certain period of time (a minimum of one year) the father should communicate with the children within a stable regime and a formally accepted format, to regain their trust.”

16.On 30 April 2010 the SSA scheduled another psychological examination of the boys. But it turned out to be impossible to conduct as the father had only agreed to theircheck-up on condition that it would be conducted in his presence and in a neutral place. However, according to the maternal family, the boys refused to see him.

17.On 18 May 2010 the Tbilisi City Court ordered that the three boys be returned to their father. Taking into account G.B.’s latest medical record, the court concluded that he was fit to resume his parental responsibilities. At the same time, thecompetent judge dismissed the medical report on the children’smental state as unreliable; she 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. As for the older boy, the judgeobserved−referring to the psychologists’reports‒ that he had had pre-prepared answers.

18.In conclusion the court noted:

“In view of all the above and having regard to the fact that the children’s mother has passed away, the separation of the children from their father and their family environment breaches their right to be raised in a family and runs contrary to their interests ...

In the current case it has been established that the respondents do not have any legal right to keep the children with them. The applicant [G.B.]’s parental rights have not been restricted ...

It has been established that the return of the children to their father would not be against their interests but, on the contrary, would be beneficial and is necessary....With the children’s best interests in mind, [G.B.’s] request is hereby granted, since bringing the children up in a family environment will have a positive effect on their physical and intellectual development”.

19.According to the case file, representatives from the SSA were not involved in the above proceedings.

20.The maternal familyfiled an appeal.They claimed inter alia that the court of firstinstance had assessed the available psychological evidence in a one-sided manner; in particular, it had relied on the SSA’sconclusion ‒which was unreliable‒ while rejecting the other medical reports in an unsubstantiated manner. They also criticised the fact that the court had put the father’s rights at the centre of its decision instead of being guided by the best interests of the children.

21.On 24 February 2011 the Tbilisi Court of Appeal quashed the first-instance court’s decision and ruled that the children should stay with their maternal family. The appeal court referred to the psychological reports, according to which the boys were in need of a stable and safe environment and any forceful change in this respect could aggravate their already stressful situation. The panel of three judges concluded as follows:

“... At this stage, the return of the children to G.B. before some more time has passed and his recovery is officially confirmed by specialists,...thereby putting the children at risk, is considered inappropriate by the chamber [from the point of view of the children’s] own safety. The chamber considers that not only should G.B. demonstrate that he has recovered but should, at the same time, prepare the children psychologically for a change in [their] situation, in order to facilitate their subsequent adjustment.”

22.The panel further noted that they shared the views of the specialists, according to which the process of the boys’adjustment to their father should happen naturally. Given that for various objective and subjective reasons the boys remained stressed in their relationship with their biological father, their removalfrom their habitual environment could,in the view of the judges, have adverse effects on them.

23.According to the court record, the representatives of the SSA and their district branch were involved in the appeal proceedings with the status of an “interested party”.

24.On 11 October 2011 the Supreme Court of Georgia remitted the case to the appeal court for re-examination. The court noted the following gaps in the decision of the Tbilisi Court of Appeal:

“In view of the specific circumstances of the case, and having regard to the interests of the children, who are minors, the court of cassation has examined in detail the material on the case fileconcerning the determination of thechildren’s place of residence and concludes that the decision in question fails to establish beyond any doubt the necessity of separating the parent and the children...

It is indisputable that drug addictionhas a negative influence on the state of mind of a person.However, bearing in mind that G.B. is being treated, and that according to the evidential material his treatment has brought positive results, [his drug addiction] does not provide a basis for drawing the unambiguous conclusion that living with their father would be insecure and dangerous for the children. At the same time, the cassation court observes that in such circumstances, when there is a suspicion of creating an unhealthy environment for minors, a court may‒ according to the civil procedural law ‒at its own initiative involve custody and guardianship authorities in order to monitor thechildren’s upbringing ...

The cassation court would like to emphasise that although the opinion of a child concerning the determination of his or her place of residence is very important, it may be disregarded if it does not correspond to his or her interests ...

The cassation court particularly notes that whenever there is a doubt ‒ requiring urgent reaction ‒as to whether a parental right is being properly exercised, or whether questions concerning a child’s upbringing have been properly decided, all the bodies concerned, and above all the court‒ which has inquisitorial power to establish and examine factual circumstances‒ is obliged to take all measures provided for by law to protect the children’srights and to actively involve the competent authorities to redressthe situation. When considering the current case, reference must be made to Article 11981 of the Civil Code, which obliges the custody and guardianship body to engage actively in protecting the rights of minors, including their right to education, rather than simply limiting itself to making general observations and assessing their living conditions.

The cassation court observes from the material on the case file that there is a clearviolation of the children’s rights from the perspective of their physical, mental, emotional, and social development and upbringing, since their legal representative – their father ‒is not able to take the requisite stepsas regards the children’s education ...”

25.Lastly, the court noted‒ along the same line of reasoning as the appeal court ‒the importance of the psychological preparation of the children for a change in their situation. It observed, however, that despite the interlocutory measure ordered by the first-instance court, no meetings between the children and their father were being organised, since the family friends had refused to take part in those meetings. In such circumstances, it was unclear how a natural adjustment process with the father could be expected.

26.In November 2011 the proceedings recommenced at the Tbilisi Court of Appeal. The maternal family members alleged that G.B. was not interested in seeing his boys and re-establishing contact and arelationship with them. They claimed that the last time he had seen the boyshad been in April 2010.They also criticised the fact that G.B. had spoken openly about the contentioussituation concerningthe boys on a TV show, following which the children had allegedly been further traumatised. The older one was ashamed of going to school because everyone knew his family situation and, according to the maternal family, would ask him questions about his “drug-addicted” father. The maternal family members also claimed that the SSA had shownabsolutely no interest in the children, not checking on them for more than a year.The father, for his part, stated that he would not want his children to go with him unless they changed their mind.

On 24 November 2011, acting at the request of G.B., the court issued an interlocutory measure under which the latter was allowed to see his children in the presence of a representative of the SSA. The appeal court also asked the SSA to report on the progress of those meetings.

27.On 11 and 18 December 2012 three social workers went to see the boys at their maternal family’s apartment. According to the report drawn up thereafter (“the report of 4 January 2012”), during both of the visits the members of the maternal family reacted negatively. The boys refused to stay and talk to the social workers alone on 11 December 2012, and at the second meeting only the older boy spoke with the social workers. The social workers concluded that the psycho-emotional condition of the children had deteriorated. Furthermore, according to the report, N. explicitly expressed a negative attitude towards his father and the social workers. In this regard the social workers observed: