CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 mars 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Communicated on 11 March 2020 Published on 30 March 2020   FIRST SECTION Application no. 3018/20 B.G. against Croatia lodged on 24 December 2019 STATEMENT OF FACTS The applicant, B.G., is a Croatian national, who was born in 1978 and lives in P. She is represented before the Court by Ms   I.   Bojić, a lawyer practising in Zagreb. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and A.P. had a son born in 2011. On 23 January 2012, A.P. filed an application with the first-instance court requesting contacts with his son. On 24 October 2012 the court issued an interim measure ordering that the child live with the applicant and allowing A.P. supervised contacts at the Z. Welfare Centre ( Centar za socijalnu skrb u Z. ; “the Centre”) once a week for two hours. On 5 December 2013, the Zagreb Children’s Hospital delivered a psychiatric and psychological evaluation recommending psychiatric treatment for the applicant and supervised parental care. It also emphasized the importance of urgent implementation of the contacts measure. On 16 September 2014 a special guardian ad litem was appointed for the child in order to represent him in the proceedings. At the hearing held on 11 November 2013, referring to the findings of the expert opinion dated 5 December 2013, A.P. requested custody of the child and proposed that the applicant be allowed contact. At the hearing held on 7 September 2015, A.P. requested an interim measure. The first-instance court ordered a fresh expert opinion. In the meantime, the applicant submitted three separate psychiatric and one psychological evaluation which showed that she was not diagnosed with any psychiatric disorder. On 9 September 2015 the applicant lodged a request asking that the Centre be replaced by another welfare centre with the Ministry of Social Affairs and Youth ( Ministarstvo socijalne politike i mladosti ; “the Ministry”) alleging that the Centre was unprofessional and partial. On 29 September 2015 the Centre delivered its opinion recommending that the child live with his father and that the applicant be allowed contact. On 20 October 2015 the applicant proposed obtaining a fresh expert examination by an impartial expert. On 3 November 2015 the first-instance court issued an interim measure, ordering that the child live with his father until the final conclusion of the court proceedings and that the applicant be allowed contacts once a week for three hours, every second weekend and public holiday and half of vacations. On appeal, the second-instance court quashed that decision, finding that the Centre’s conclusions of 29 September 2015 had been contradictory and insufficiently reasoned and that the first-instance court should have accepted the applicant’s proposal for a new expert opinion. On 19 February 2015, the Ministry informed the first-instance court that it did not accept the applicant’s request for the Centre’s removal. On 14 April 2016, the first-instance court ordered a new expert opinion. On 28 December 2016 the Rijeka Hospital delivered its findings, stating that the applicant suffered from a mental disorder (paranoid state) and that she had been emotionally abusing the child. It recommended that the child live with A.P. At the hearing held on 11 July 2017, the expert witnesses from the Rijeka Hospital confirmed their findings in court. On 11 July 2017, the first-instance court gave judgment awarding custody of the child to the applicant and contact rights to A.P. The court determined that, although the applicant was a confused and immature person, overprotective of the child and obviously determined not to allow A.P. contacts, bearing in mind the child’s young age (five years at the time), it was considered in the child’s best interest to continue to live with the applicant. On appeal, on 23 October 2017 the second-instance court reversed the first-instance judgment and awarded custody to A.P. and supervised contact to the applicant once a week. On 24 October 2017, the applicant lodged a request for removal of the Head of the Centre, some of the Centre’s employees and its psychologist. Her requests were dismissed as ill-founded. The applicant lodged an “extraordinary” appeal on points of law and a constitutional complaint asking, inter alia , to postpone enforcement of the second-instance judgment ( prijedlog za odgodu ovrhe ). On 5 February 2018 the final court judgment of 23 October 2017 was enforced by the police and since then the child has been lived with A.P. and the applicant has been exercising her contact rights. On 28 February 2018 the Supreme Court declared the applicant’s appeal on points of law inadmissible. The Constitutional Court’s decision, dismissing the applicant’s constitutional complaint, was served on the applicant on 10 July 2019. COMPLAINTS The applicant complains under Articles 6 and 8 of the Convention that she did not have fair and impartial custody and enforcement proceedings, that the child was not heard in those proceedings, that she was awarded insufficient contacts with her son and that the decision to grant custody to the father without any preparation or adaptation period was not in the child’s best interests. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did she have an effective opportunity to participate and challenge evidence in the custody proceedings and its subsequent enforcement?   2.     Has there been a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention? In particular, were the reasons adduced by the second-instance court concerning custody and the applicant’s contact rights relevant and sufficient in the circumstances? Was the decision-making process fair and such as to ensure due respect for the various interests safeguarded by Article 8, notably the best interests of the child?