The European Court of Human Rights (First Section), Sitting on 25November 2014As a Chamber

KRUŠKIĆ v. CROATIA DECISION1

FIRST SECTION

DECISION

Application no. 10140/13
VesnaKRUŠKIĆ and others
against Croatia

The European Court of Human Rights (First Section), sitting on 25November 2014as a Chamber composed of:

IsabelleBerro-Lefèvre, President,
MirjanaLazarova Trajkovska,
JuliaLaffranque,
PauloPinto de Albuquerque,
Linos-AlexandreSicilianos,
ErikMøse,
KsenijaTurković, judges,
and SørenNielsen, Section Registrar,

Having regard to the above application lodged on 17 December 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.The applicants, Ms Vesna Kruškić, MrNikola Kruškić [Sr], MsEmanuela Kruškić and Mr Nikola Kruškić [Jr] are Croatian nationals who were born in 1966, 1961, 2006 and 2005 respectively and live in Mirkovci. They were all represented before the Court by Ms V. Šnur, an advocate practising in Vinkovci.

2.The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

A.The circumstances of the case

3.The facts of the case, as submitted by the parties, may be summarised as follows.

4.The first and second applicants are the grandparents of the third and fourth applicants. They all lived in the common household from the birth of the third and fourth applicants together with I.K. (who is the first and second applicants’ son and the third and fourth applicants’ father) and his unmarried wife K.F. (who is the third and fourth applicants’ mother).

5.On 18 January 2008 K.F. left the common household.

6.On 24 August 2011 I.K. left the common household as well.Soon afterwards he rented a flat and moved in with a certain Ms B.B. with whom he was in a relationship.

7.The third and fourth applicants remained in the household of the first and second applicants after I.K. had left but it appears that shortly afterwards a dispute arose between the first and second applicants and I.K. concerning the third and fourth applicants’ place of residence.

8.On 11 October 2011 I.K. called the police and alleged that the first applicant had not let him take his children to his new home. After the phone call, I.K. visited the applicants accompanied by police officers. The first applicant informed the police that I.K. was unreliable and unemployed and had never taken care of his children. The police officers replied that parents were the legal guardians of their children and advised the first applicant to contact the local social welfare centre.

1.Proceedings instituted by the local social welfare centre

9.On 25 October 2011 the first and second applicants submitted to the Vinkovci Social Welfare Centre (Centar za socijalnu srkb Vinkovci, hereinafter “the local social welfare centre”)that the third and fourth applicants had been abandoned by both parents. In particular, the first applicant stated that she and the second applicant had taken care of the third and fourth applicants since their birth and that their father I.K. had never taken care of his children. Rather, he had been keeping child benefits for himselfand had not contributed to their maintenance. She further alleged that I.K. was prone to alcohol abuse and had often beatenthe children with a belt and forced them to sleep on the floor, and that he had eventually abandoned them on 24 August 2011. Furthermore, on 24September 2011 he had attempted suicide whereupon he had been kept for ten days in the psychiatric ward of the local hospital.

10.On the same day the centre instituted administrative proceedings for the protection of children’s rights with a view to adopting appropriate child protection measures.

11.On 31 October 2011 the centre (a) asked the psychiatric ward of the Vinkovci General Hospital to report on the health of I.K., as it had had been brought to its attention that he had been treated there, (b) requested a report from the police authorities on their interventions in the family, and (c) asked the local clinic to report on the general state of health of the third and fourth applicants.

12.On 7 November 2011 the police authoritiessubmitted their report on the events of 11 October 2011 (see paragraph 8 above) to the centre.

13.On 30 November 2011 an employee of the centre carried out an onsite inspection of the applicants’ home.

14.On 12 December 2011 and 27 December 2011 respectivelythe centre carried out onsite inspections of K.F.’s and I.K.’s homes, and on 10January 2012 interviewed K.F. and I.K. During his interview I.K. denied the first applicant’s allegations (see paragraph 9 above) claiming that she did not allow him to visit his children. In particular, he denied having attempted suicide and explained that he had cut himself while breaking glass during an altercation with B.B. for which he had to be treated at the local hospital. The report eventually obtained from the Vinkovci General Hospital appears to support I.K.’s version of events (see paragraph 63 below).

15.On the basis of those onsite inspections and interviews, on 6February 2012 the centre prepared a report, which it submittedto the Vinkovci Municipal Court in the proceedings concerning custody of the third and fourth applicants (see paragraphs 26-28 below), which were instituted in the meantime.

16.On 7 May 2012 the centre asked the police to investigate allegations of I.K.’s previous violent behaviour. On 2 October 2012 the police authorities, after having interviewed the first applicant, K.F., I.K. and his sister S.K., informed the centre that they had found no probable cause that I.K. had ever committed a criminal offence of domestic violence against the third or fourth applicants.

17.By a decision of 10 July 2012 the centre ordered the child protection measure of supervision of parental care of I.K. and K.F. for the period of one year. It prepared a programme of supervision and conferred the supervision to a certain Z.P., a nurse. As the third and fourth applicants were at the time still living with the first and second applicants, the measure consisted of monitoring contacts between the children and their parents.

18.On 19 February 2013 Z.P. asked to be relieved of her supervisory duties.

19.On 22 February 2013 the centre’s social worker proposed that the supervision of K.F. and I.K. in the exercise of their parental care be continued with a new person in charge.

20.On 2 April 2013 the centre appointed a certain A.P., a social worker employed at the psychiatric ward of the Vinkovci General Hospital, to supervise the parental care carried out by K.F. and I.K.

21.On 28 June 2013 A.P. suggested that the child protection measure of supervision of parental careordered by a decision of 10 July 2012 (see paragraph 17 above) be discontinued for its poor results and the first applicant’s lack of co-operation. The measure expired on 10 July 2013.

22.By a decision of 6 February 2014 the centre ordered the child protection measure of supervision of I.K. and K.F. in the exercise of their parental care from 1 February 2014 to 31 January 2015. Since the third and fourth applicants were as of 30 December 2013 living with their father I.K.(see paragraph 79 below), the measure was carried out by occasional visits to their new home.

23.The centre’s reports for February and March 2014 were positive as regards I.K. and the third and fourth applicants’ development in his care, whereas it was noted that K.F. had not visited the children regularly and had not managed to interact with them.

2.Proceedings concerning custody of the third and fourth applicants

(a)Proceedings between the third and fourth applicants’ parents

24.On 18 November 2011 the third and fourth applicants’ mother K.F. instituted non-contentious proceedings before the Vinkovci Municipal Court (Općinski sud u Vinkovcima) against their father I.K., seeking custody of their common children.

25.Four days later I.K. instituted similarnon-contentious proceedings before the same court against K.F. seeking that he be granted custody of the third and fourth applicants. The two proceedings were subsequently joined.

26.On 6 February 2012 the local social welfare centresubmitted its report to the court, consisting of the opinion ofthe psychologist and the opinion of a social worker, both employed at the centre.

27.The relevant part of the psychologist’s opinion reads as follows:

“... it is in the interests of the children to live with their father, who is motivated to take care of them and can adequately meet their needs. In the event of any omissions on the part of the father in caring for the children, the centre will orderchild protection measures. It is also in the interests of the children to have contacts with their grandparents, and if I.K.cannot agree on contacts between them, his parents could ask the court to grant them access rights. In any case, it would be ill-advised to interrupt the emotional bond the children have with their grandparents, as that could be harmful.

For the mother, I suggest contacts every weekend, on Saturdays from 9 a.m. to 6p.m. and alternate holidays, at her own home, so that she collects the children at their father’s home and returns them there.”

28.The relevant part of the social worker’s opinion reads as follows:

“As the family situation is extremely complex, we tried to invite I.K. and his parents to the centre so that they could reach an agreement on how to solve their problems, but they never all came at the specified time, always having different excuses ...

...

I am of the opinion that, despite his modest means, the father meets the basic conditions for caring for his children ... it is necessary that the father takes the responsibility and provides an adequate upbringing for the children. I am also of the opinion that detachment of children of their age from their parents can create alienation, with negative consequences for their development.

I am of the opinion that the children’s mother does not meet the conditions for the care of her children. She is aware of that and agrees that the children should live with their father.

For the mother, I suggest contacts every weekend, on Saturdays from 9 a.m. to 6p.m. and on alternate holidays, at her own home, so that she collects the children at their father’s home and returns them there.”

29.By a decision of 7 February 2012 the Vinkovci Municipal Court (a) granted custody of the third and fourth applicantstotheir father I.K.,(b) granted access rights to their mother K.F. to be exercised on weekends and alternate holidays. In so deciding the court relied on the report of the local social welfare centre.

30.On 15 February 2012 K.F. lodged an appeal against that decision. On 27 February 2012 the first and second applicants also lodged an appeal. In so doing they in substance repeated their allegations against their son I.K.made before the local social welfare centre (see paragraph 9 above). The first and second applicants also argued that, because their father had abandoned them,the children should have been temporarily placed in their custody.

31.By a decision of 28 February 2012 the Vinkovci Municipal Court declared the first and second applicants’ appeal inadmissible as they were not parties tothe proceedings.

32.The first and second applicants thenappealed against that decision, arguing that they had an interest to lodge the appealbecause the local social welfare centre had failed to act in accordance with section 103 of the Family Act after it had been informed that both parents had abandoned the third and fourth applicants (see paragraphs 9 above and 94 below).

33.By a decision of 18 April 2012 the Vukovar County Court (Županijski sud u Vukovaru) dismissed both appeals and upheld both first-instance decisions (see paragraphs 29 and 31 above).

34.By a decision of 12 September 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the subsequent constitutional complaint by the first and second applicants.

(b)Proceedings instituted by the first and second applicants against the third and fourth applicants’ parents

(i)Proceedings for obtaining custody

35.On 12 March 2012 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court against K.F. and I.K., seeking custody of the third and fourth applicants. They repeated their allegations that I.K. had been beating the third and fourth applicants, who were afraid of him, that he had abandoned them in August 2011 and in September 2011attempted to commit suicide. The first and second applicants also emphasised their role as the sole carers for their grandchildren, and stated that they had asked the local social welfare centre to temporarilygrant them custody, but the centre had failed to render a decision within eight days and thus had acted contrary to section 103 of the Family Act (see paragraph 95 below).

36.By a decision of 20 March 2012 the Vinkovci Municipal Court declared the first and second applicants’ request inadmissible for lack of standing. The relevant part of that decision reads as follows:

“In order to decide whether award custody of a child to a third person or an institution, it is first necessary to deprive the child’s parents of their right of custody. As such a request was not made during the proceedings, nor was it established that the parents were deprived of their right of custody, the petitioners’ request is inadmissible. Furthermore, section 103(1) of the Family Act provides for measures to be taken by a social welfare centre when both parents are absent, prevented from taking care of their child, or for medical or similar reasons unable to do so. In such situations the social welfare centre must, without parental consent, award custody of the childto another individual, children’s home or another legal entity providing social services.

In their request the petitioners rely on section 107 of the Family Act which provision governs contacts between grandchildren and grandparents whereas the petitioners are seeking custody of the children. In fact, the petitioners are seeking [to obtain] the right to live with the children, but they are not entitled to lodge such a request.”

37.By a decision of 4 June 2012 the Vukovar County Court dismissed the first and second applicants’ appeal and upheld the first-instance decision by endorsing the reasons given therein.

38.On 3 October 2012 the Constitutional Court dismissed the subsequent constitutional complaint by the first and second applicants.

(ii)Proceedings to deprive the third and fourth applicants’ parents of the right of custody

39.On 13 April 2012 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court against K.F.and I.K., seeking that they be deprived of custody of the third and fourth applicants. Relying on section 111 of the Family Act (see paragraph 95 below) they argued that both K.F. and I.K. had abandoned their children and were unfit to care for them.

40.By a decision of 16 May 2012 the Vinkovci Municipal Court declared the request by the first and second applicants inadmissible for lack of standing. In particular, it held that, under section 113 of the Family Act (see paragraph 95 below), such request could be lodged only by the competent social welfare centre or the children themselves.

41.The first and second applicants did not appeal against that decision. It thus became final on 8 June 2012.

3.Proceedings concerning the handover of the third and fourth applicants to their father

(a)Principal proceedings

42.On 1 March 2012 I.K., relying on section 106 of the Family Act(see paragraph 95 below), instituted non-contentious proceedings before the Vinkovci Municipal Court against the first and second applicants seeking the handover of his children, namely, the third and fourth applicants.

43.In their reply of 30 March 2012 to I.K.’s request, the first and second applicantsargued that I.K. had often been absent, was unfit to care for his children and had never done so, and that it had eventually abandoned them in August 2011.

44.At the hearing held on 4 April 2012 the court heard the petitioner, the first and second applicants and the representative of the local social welfare centre.

45.In his testimony I.K. explained that in August 2011 he had left only for some time to look for a job at the seaside. He claimed to have agreed with the first and second applicants that they would take care of his children in his absence.

46.Therepresentative of the local social welfare centre supported I.K.’s request, as the first and second applicants had no legal ground to keep the third and fourth applicants in their care. She also submitted that the centre had not adoptedchild protection measuresenvisaged for cases of abandoned children as it had been agreed amongst the parties that the children would remain in careof the first and second applicantsonly temporarily, which was allowed under the Family Act.

47.By a decision of 6 April 2012 the Vinkovci Municipal Court allowed I.K.’s request and ordered the first and second applicants to surrender the third and fourth applicantsto their father.It held that the first and second applicants indeed had no legal ground to keep the children in their home.

48.The first and second applicants then lodged an appeal against that decision. They argued that the local social welfare centre had failed to properly assess I.K., namely, his aggressive behaviour and alcohol abuse. They also argued that the centre had completely ignored the fact that the third and fourth applicants had been abandoned by both of their parents. Lastly, they disputed the existence of any agreement between the parties on the temporary care of the children.