CEDH · CASELAW;CLIN;ENG — 2 février 2016

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Georgia - 71776/12 Judgment 2.2.2016 [Section IV] Article 8 Article 8-1 Respect for family life Respect for private life Court order for children’s return to their father against their will: violation Facts – The applicants were a maternal aunt and her three minor nephews. Following the death of their mother in November 2009, the boys went to live with their mother’s relatives as their father, who had a previous conviction for drug abuse, was undergoing treatment for drug addiction. In early 2010 the father sought a court order for the return of his sons. At first instance, although asked to appoint a representative to protect the boys’ interests, the Social Service Agency was not involved in the proceedings. The proceedings ended in an order for the boys’ return to their father, despite an expert report recommending that no change be made to their living environment as they suffered from separation anxiety disorder and showed a negative attitude towards their father. Although the order for the boys’ return was ultimately upheld following a series of appeals, it remained unenforced, as the boys refused to move in with their father and two attempts to hand them over were unsuccessful. In the Convention proceedings the aunt complained, on behalf of her nephews, that the boys’ right to respect for their private and family life (Article   8 of the Convention) had been violated on account of the domestic courts’ decision to return them to their father. In a preliminary objection, the Government argued that the aunt did not have the necessary standing to act on behalf of her nephews as the father had become their sole legal guardian after their mother’s death and the boys had never been placed under the guardianship of their aunt. Law – Article 8 (a)     Locus standi of the aunt – As minors who had lost their mother and had a complicated, if not hostile, relationship with their father, the three boys were in a vulnerable position. There was no doubt that their aunt had a sufficiently close link with them to complain on their behalf, as she had cared for and provided a home for them, and they had been living with their maternal family for more than two years by the time the application was lodged with the Court. Moreover, in view of their alienation from their father, there was no closer next of kin who could complain on their behalf. As for potential institutional alternatives, the Social Service Agency was itself the subject of criticism in the present case and it would not be realistic to expect it to facilitate the complaint before the Court on behalf of the boys. In the absence of any conflict of interest regarding the subject matter of the application and in view of the important interests at stake for the boys, the aunt had standing to lodge the case on their behalf. Conclusion : preliminary objection dismissed (unanimously). (b)     Merits – The essence of the case lay in the applicants’ complaint that the procedures followed by the domestic authorities were not in compliance with the requirements of Article   8 and disregarded the best interests of the children. Two fundamental aspects had to be examined: whether the boys were duly involved in the proceedings, and whether the decisions taken by the domestic courts were dictated by the boys’ best interests. (i)     The right to be represented and heard – Although the first-instance court had requested the appointment of a representative for the boys, the Court had reservations as to the specific role played by the representative in the course of the domestic proceedings. Firstly, the Social Service Agency had become formally involved in the proceedings only from the appeal stage and then only as an “interested party”, a status for which the Code of Civil Procedure made no provision. It was therefore unclear how the Agency could have effectively represented the children’s interests while lacking a formal procedural role. Secondly, it remained ambiguous what such representation implied exactly, as the relevant legislation did not spell out the functions and powers of the representative. In practice, during the period of more than two years the proceedings in the applicants’ case had lasted, representatives of the Agency had met the boys only a few times with the purpose of drafting reports on their living conditions and their emotional state of mind, but no regular contact had been maintained in order to monitor the boys and establish a trustful relationship. In that context, the Court referred to the recommendations of several international bodies, including the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice , which sought to ensure that in cases where there were conflicting interests between parents and children either a guardian ad litem or another independent representative was appointed to represent the child’s views and keep it informed about the proceedings. The Court did not see how the Social Service Agency’s drafting of reports and attending court hearings without the requisite status could be considered adequate representation by those standards. Moreover, contrary to the relevant international standards, the national courts had failed to consider the possibility of directly involving the oldest boy (who was born in 2002) in the proceedings. (ii)     Assessment of the children’s best interests – The domestic courts’ decision was mainly based on two reasons: that it was in the boys’ best interest to be reunited with their father and that the maternal family had a negative influence on the boys. While the Court accepted that motivation, it noted that the domestic courts had failed to give adequate consideration to the important fact that the boys did not want to return to their father. Whatever manipulative role the maternal family may have played in alienating the boys from their father the evidence before the domestic courts concerning the boys’ hostile attitude towards him was unambiguous. Moreover, there had been several reports by psychologists who had warned of the potential risks to the boys’ psychological health if they were forcefully returned to their father. In those circumstances, ordering such a radical measure without considering a proper transition and preparatory measures to assist the boys and their estranged father to rebuild their relationship appeared to be contrary to the boys’ interests. The Court concluded that the flawed representation and consequential failure to duly present and hear the boys’ views had undermined the procedural fairness of the decision-making process and been exacerbated by an inadequate and one-sided consideration of the boys’ best interests in which their emotional state of mind was simply ignored, in breach of their right to respect for their family and private life. Conclusion : violation (unanimously). Article 41: EUR 10,000 jointly to the three boys in respect of non-pecuniary damage (sum to be held by the aunt). (See, on the question of standing, Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], 47848/08, 17   July 2014, Information Note   176 ; Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v.   Romania , 2959/11, 24   March 2015, Information Note   183 ; see also, sections 6.1 and 6.2 (alternative care) in the Handbook on European law relating to the rights of the child )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes