Last Updated on April 23, 2020 by LawEuro
FIFTH SECTION
CASE OF X AND Y v. BULGARIA
(Application no. 23763/18)
JUDGMENT
STRASBOURG
6 February 2020
This judgment is final but it may be subject to editorial revision.
In the case of X and Y v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 14 January 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23763/18) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, X (“the first applicant”) and Y (“the second applicant”), on 11 May 2018. The President of the Section decided not to have their names disclosed (Rule 47 § 4 of the Rules of Court).
2. The applicants were represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva‑Chinova, from the Ministry of Justice.
3. On 12 October 2018 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The first applicant was born in 1978. The second applicant, who is the first applicant’s son, was born in 2010. The first applicant brought the application on behalf of both applicants. Both applicants live in Pleven.
A. Background
5. The first applicant and V.D., a well-known local businessman, lived together as a couple from 2009 onwards. In 2010 they had a child together, the second applicant. In 2012 the couple had another child.
6. On 6 December 2012 the first applicant and V.D. separated. The first applicant left the flat where she lived with V.D. and the children, and went to live with her parents in their apartment, taking the younger child with her.
7. The first applicant’s version of the events regarding the run-up to the separation and the period thereafter differs from that of V.D. This is reflected in the paragraphs below.
8. According to the first applicant, V.D. subjected her to psychological, emotional and financial abuse the whole time that they lived together. After their separation V.D. systematically put in place obstacles to the two applicants’ living together and it appears that the first applicant had only limited contact with her child. He either did not bring the child to her apartment as agreed, or made her wait for hours in the city for him to bring the child, which he did not always do.
9. According to V.D., he never objected to the two applicants’ spending time together, but was only ever concerned about the well-being of his elder child. V.D. repeatedly invited the first applicant to return to live with him, without success.
B. Custody proceedings
1. At first instance
10. The first applicant visited a lawyer on 7 December 2012. According to a sworn statement made by that lawyer and submitted to the Court by the applicant’s representative, she had been upset and frightened because V.D. had taken away their elder child the previous day. He had threatened her by saying that she would not see the child if she were to go to court in that regard. Realising that V.D. would not let her live with the child, on 4 July 2013 the first applicant initiated judicial proceedings, seeking custody of the second applicant.
11. At the relevant time the second applicant lived with V.D. and the first applicant had contact with him only occasionally. In a written reply to the Pleven District Court of 27 July 2013, V.D. stated, among other things, that the first applicant had seen the child during the Christmas holidays, as well in February, June and July 2013.
12. On 18 September 2013 the Pleven District Court granted an application by the first applicant for interim measures, awarding her temporary custody while the proceedings were ongoing.
13. During the ensuing proceedingsthe Pleven District Court admitted two psychological expert reports into evidence. According to the two reports, the first applicant was calm and well‑balanced, and had calm conversations with her two children in her home. While living with V.D., she had felt subjugated and like a servant. The second applicant was attached to his father and was in the process of being alienated from his mother, but her involvement in the child’s life was of crucial importance for his development and well-being.
14. The Pleven District Court also admitted another report into evidence, a report by the social services, which referred to an incident which had occurred on 28 September 2013 outside the mother’s apartment, when V.D. had had to hand over the second applicant to the mother. The report stated that a social worker (it transpired during a court hearing that this was Y.P.) had been off work and absent from the city on that day when V.D had telephoned her telling her the child did not wish to stay with his mother. The social worker had then spoken to the first applicant on the phone, attempting to reason with her. However, the first applicant had not respected the wish of her child and neither had she listened to the social worker’s advice, but had behaved aggressively and impertinently on the phone. The report stated that, on the basis of that, it could be concluded that the first applicant’s parenting capacity was poor, that she was emotionally unbalanced, lacked tact and patience and was not capable of caring for and bringing up the second applicant.
15. During a hearing before the Pleven District Court on 9 October 2013, Y.P. confirmed that on the day after that incident V.D. had personally visited her at the premises of the social services and had related the details of the event to her. During another hearing before the same court seven days earlier, a police officer, who had reported to the scene on 28 September 2013 after a signal about a disturbance at the first applicant’s address, stated that he had not seen the first applicant behave rudely either to the child or to V.D. After speaking with the officer, the child had calmed down and had followed him to the mother’s apartment where he had stayed peacefully.
16. Having heard the parties and witnesses and considered the reports, the Pleven District Court granted the first applicant custody on 27 December 2013. The court determined that there should be extensive contact between the second applicant and V.D. – the child was to spend two weeks every month with him. V.D. was also ordered to pay financial maintenance in the amount of about 60 euros (EUR) monthly for the second applicant’s upkeep.
2. At second instance
17. Following appeals by both the first applicant and V.D., on 30 May 2014 the Pleven Regional Court upheld the lower court’s judgment as regards custody. However, the court limited V.D.’s contact rights to two weekends a month, two hours every Wednesday, and a month during the summer.
18. The Pleven Regional Court considered a report by social services in which they had been called upon to comment on whether there had been any developments in the situation after October 2013. The report, drawn up by a social worker called S.S., listed at length the circumstances as related by the two parents regarding the whole period after their separation in December 2012. In addition, it pointed briefly to two instances, on 28 September 2013 and 19 January 2014, when the child had been reluctant to go with the mother. After the father had complained to the social services about it, they had met with the child together with a psychologist and the child had said that he had been hit by his grandfather and locked alone in a room. The report concluded that the father was in a position to provide the children with a higher standard of living, and that although the mother was attempting to create a calm environment in which to bring up the second applicant, the important adult in his life was his father. It was advisable not to change the second applicant’s habitual place of residence, which was with his father, and to give V.D. custody of the child (see also para 38 below).
19. The court further referred to the report provided before the first-instance court (see paragraph 14 above) and found that the social services’ statements in it were not confirmed by the rest of the evidence gathered. It observed that a single telephone conversation could not serve as a basis for a conclusion that the mother was unstable and could not care for her child. This was even more the case, given that the social worker in question had not been personally present at the scene on 28 September 2013.
20. The court then found that it could not be said that one parent had better parenting skills than the other. It was crucial not to allow the process of parental alienation of the mother, which had already started, to develop further. The problems associated with handing over the child to the mother were not unsurmountable. It was understandable and only natural for the child to identify with the only dwelling he called home, his father’s apartment, where he had been born and where he had lived continuously ever since, as opposed to the apartment of his maternal grandparents, which he had visited only occasionally and had not grown to accept as his home.
21. The court held that, while moving to live with his mother would undeniably bring about certain adaptation difficulties in the second applicant’s life, they would not be the type of difficulties to negatively affect the relationship between mother and son, and were bound to ebb away with time. Moreover, the fact that the father possessed several properties and was in the process of converting a sanatorium into his primary residence, equipped with a swimming pool and a playground, should not be decisive in terms of his child-rearing capacity. The mother’s living conditions were acceptable for that purpose. The court concluded that it would be in both children’s best interests to live together on a permanent basis with one of the parents – in this case, with the first applicant.
3. Cassation proceedings
22. On 27 November 2014 the Supreme Court of Cassation dismissed an appeal on points of law by V.D., and the judgment of the Pleven Regional Court became final on that date.
C. Situation in practice during 2014 and 2015
23. It appears from the findings of the domestic courts that, while the first applicant has held custody – as an interim measure since 18 September 2013 and on the basis of the judgments thereafter – she has continually experienced difficulties with the transfer of the second applicant to her (see paragraphs 30, 53 and 56 below) and, despite the courts’ rulings, the second applicant did not live with the first applicant for lengthy period of time (see paragraphs 18, 20, 21 above and paragraphs 24 and 51 below). She repeatedly put on notice the social services and the bailiff (see paragraphs 24, 34, 35 and 36 below), and the prosecution (see paragraph 29 below), complaining of being prevented from exercising her custodial rights despite the rulings by the courts. Apart from the helpful intervention of the police on two occasions, she continued to be dependent on the other parent’s good will concerning when the child would stay with her (see paragraphs 30, 37, 51, 54 and 55 below).
D. Enforcement proceedings
24. The first applicant obtained a writ of enforcement on 7 April 2015, and on 16 April 2015 she sought the bailiff’s assistance in implementing the final judgment of November 2014. On six occasions in April and May 2015 the bailiff attempted (unsuccessfully) to summon V.D. so that he could hand over the child to the mother. In particular, the summons officer who was sent to deliver the request for voluntary compliance to V.D. recorded on the summons that no one had answered the door and that, according to a neighbour, V.D. maintained no contact with his neighbours.
25. In February 2016 the first applicant once again asked the bailiff to enforce the judgment. That same month V.D. requested that the bailiff withdraw from the case. The bailiff withdrew on 14 July 2016, on the basis that he had common interests with V.D.
26. A new bailiff took over the case, and on 15 September 2016 he invited V.D. to voluntarily hand over the child to the first applicant. V.D. asked the bailiff to suspend the enforcement until 11 October 2016, as he intended to use resources provided by social services which were aimed at facilitating the child’s transfer to the mother.
27. The bailiff summoned V.D. to hand over the child to the first applicant on 18 October 2016; the handover was mandatory. On that date, after a psychologist and a representative from the child protection agency had talked to the second applicant, who refused to leave his father, the bailiff decided to postpone the handover, noting that additional efforts had to be made to enhance the trust between mother and child. He then instructed the parties to make the necessary efforts and meet – in institutional settings and with the assistance of a psychologist – in order to facilitate the prospective handover.
28. In March, August and November 2017 the first applicant asked the bailiff to schedule a new date for the handover, but to no avail. On 9 March 2018 the bailiff wrote to her asking if she had complied with his instructions of October 2016. After she replied that those instructions had been directed at the person against whom the judgment was being enforced, and not at her, the bailiff specified in June 2018 that both parents were concerned. According to the first applicant, that letter only reached her in February 2019.
E. Criminal proceedings against V.D. for non-compliance
29. From March 2015 onwards the first applicant complained to the prosecuting authorities on numerous occasions about V.D.’s obstructing the enforcement of the 2014 final judgment. Initially, the prosecution service repeatedly refused to open criminal proceedings.
30. Thereafter, investigations were closed and reopened several times. In April 2016 the Pleven District Court set aside the latest decision by a prosecutor to terminate such an investigation. In particular, the court found that as the competent civil court had decided the question of custody in a final decision, it was unacceptable for anyone else thereafter – be it the other parent, the prosecution service or the child himself – to take a stance on this issue. The position of a person who had to comply with a judicial decision and yet kept avoiding his obligations was untenable. The situation undoubtedly represented repeated, intentional, demonstrative failures by V.D to act in accordance with the judgment. Moreover, V.D. had not denied those failures, but had instead considered them justified on the basis that they were beneficial for the child. Nothing in the file suggested that V.D. had made any attempt to return the child to the mother, and the prosecution service had wrongly considered that such inadequate conduct could have been prompted by concern for the child’s well-being.
31. On 18 July 2016 V.D. was charged, but ultimately on 30 March 2018 the prosecution service terminated the proceedings for lack of an offence. The first applicant was notified of the decision terminating the proceedings on 12 April 2018 and did not appeal against it.
F. Involvement of social services and the police
1. Actions initiated by the first applicant
32. On two occasions when V.D. had to hand the second applicant over to the mother at her apartment – on 28 September 2013 and 19 January 2014 – it appears that the child refused to stay with his mother and was calmed down and accepted to stay with her only after the intervention of the police, whom she had called for help. Two days after the first incident, the social worker Y.P., who was not present at the incident, drew up a report in which she recommended that the second applicant live with V.D., as separating the two of them would negatively affect the child’s fragile psychological state. She also wrote that it was not in the second applicant’s interests to live with his mother, who was irritable, emotionally unstable, and lacked patience and parenting ability (see paragraphs 14 and 15 above).
33. In January 2014 the first applicant complained to the director of the local Directorate for Social Assistance (“the Directorate”) and the Sofia branch of the State Agency for Child Protection of Y.P.’s inappropriate conduct in the context of her professional duties. In February 2014 the Directorate’s head recommended that the first applicant make efforts to improve her communication with V.D., which would facilitate relations among all those concerned. Social worker Y.P. requested to be taken out of the case, following the first applicant’s complaints about her, and that request was approved by the Directorate (see also paragraph 48 below).
34. In August 2014 the first applicant sought assistance from the central Directorate in Sofia, so that she could take care of her two children without stress and permanent disturbance. She complained that V.D. had not allowed her to meet with the second applicant between December 2012 and June 2013, and had proposed that she give up her custody rights in favour of him, in exchange for financial support for their second child. As she had refused, he had threatened to cause problems for her for the next fourteen years. Furthermore, on one occasion V.D. had agreed to collect the second applicant for contact on 4 August 2014 instead of 1 August 2014, but then had demanded to collect the child on 1 August. Several days later a bailiff had fined the first applicant EUR 125 for not complying with the court’s decision on contact between the second applicant and V.D.
35. The first applicant also complained that V.D. had established personal relations with some officials from social services. One of them, S.S., had kept telling her that she was expected to comply with V.D.’s expectations. She also referred to the report drawn up by S.S. in March 2014 (see paragraph 18 above), and asked that he be taken off her case.
36. In April 2015 the first applicant wrote to the Child Protection Unit (“the CPU”) of the Directorate, describing that she had been unable to meet with the second applicant since 13 March 2015, as a result of V.D.’s obstruction. The CPU forwarded her complaint to the prosecution service, which refused to open an investigation. The first applicant collected the child from V.D.’s home on 13 May 2015, and the father retained the child again between 10 and 30 June 2015, against the mother’s will. In July 2015 she again complained that V.D. had not handed the child over to her.
37. In August 2016 the first applicant wrote to the Directorate, signalling that for about four years, for reasons outside her control, she had not been able to live with her child. The Directorate replied that she was well acquainted with the reasons why her elder child did not wish to live with her, and there were no grounds for changing the social worker who was dealing with her case, S.S. Thereafter, the first applicant informed a specialised foundation which provided social services that as long as S.S. was in charge of her case, she was opposed to meeting the child at the foundation’s premises.
2. Actions initiated by V.D.
38. In January 2014 V.D complained to the social services about the child’s unwillingness to go with his mother on two occasions, respectively on 28 September 2013 and 19 January 2014 (see paragraphs 14, 15 and 18 above). On 6 February 2014 the head of the Directorate replied to him that social services had followed up on his complaint and on 27 January 2014 had visited the first applicant’s dwelling where both she and her father had vehemently denied ever mistreating the second applicant. Social services had met with the child two days later. It was evident that the child was suffering as a result of his parents’ separation and had difficulties adapting to the new rule at his grandfather’s home. As a result, social services had written to the first applicant recommending to her that she make an effort to improve her communication with V.D. and with the children. Additionally, she had been invited to seek psychological help for overcoming the conflicts with V.D. (see paragraph 33 above).
39. In April 2015, and again in July 2015, V.D. turned to the Directorate, requesting that measures be implemented to preserve the second applicant’s health and well-being. In particular, he asked for the first applicant to be instructed to always meet the second applicant in the presence of a social worker and/or a psychologist, given the anxiety she caused the child. Between April and October 2015 V.D. took the child to a psychologist five times. On 21 July 2015 the Directorate drew up a record of the case, noting, among other things, that the child consistently refused to go and live with his mother and displayed fear and emotional trauma as a result of the negative attitude towards him displayed by his mother and grandmother. The child needed to work with a psychologist in order to overcome the crisis in his relationship with his mother. Both parents were directed to individually use the services of a psychologist, with a view to having meetings at the social services premises and handing over the child to the mother.
3. Further events related to social services
40. Thereafter, four meetings were held at the foundation’s premises on consecutive days, starting on 29 July 2015, always in the presence of specialised professionals who produced a report at the end. Both the first applicant and V.D. took part in those meetings, while the second applicant attended three of them. The conclusion was that, while the child was happy to spend time in the company of his mother, he was categorically opposed to leaving the premises with only her.
41. In February 2016 the Directorate directed V.D. and the second applicant to attend regular preparatory counselling sessions provided by the foundation over a period of three months, with a view to facilitating the child’s acceptance of his mother.
42. After the first applicant repeatedly asked the Directorate for help, in March 2016 the Directorate replied that the child was firmly opposed to living with her. It said that in order to overcome this opposition, the authorities had been arranging counselling sessions for the child and the father since February 2016. For optimal results, it was necessary that the first applicant also attend such sessions, and she would have to make a specific application for this.
43. A report of 18 May 2016 prepared by the foundation noted that both parents had expressed willingness to receive assistance in relation to handing the child over to the mother. Another report by the foundation recorded that after 25 April 2016 individual meetings with each parent had taken place.The report concluded by giving a recommendation that the relevant work continue.
44. The foundation’s records noted that a meeting between the two applicants had taken place at the foundation’s premises in July 2016. V.D. had waited outside the room and the child had asked three times whether his father was waiting for him.
45. In October 2016 the foundation drew up a final report, noting that the necessary preparatory measures which had been envisaged in the context of working with the second applicant and his parents with a view to encouraging him to accept living with his mother had not been carried out. The child did not harbour negative emotions towards his mother, but continued to refuse to live with her. When foundation staff had advised V.D. to motivate the child to go and live with his mother, he had replied that he would act in accordance with the child’s wishes.
46. In February 2017 the Directorate wrote to V.D. informing him that, as the first applicant had not agreed to attend the preparatory counselling sessions, it would be impossible to work towards building an emotional closeness between the two applicants.
G. Other court proceedings
47. In June 2015 V.D. discovered a haematoma on the second applicant’s cheek, which the child explained was the result of his maternal grandmother slapping him because he had insulted her. V.D. immediately initiated proceedings concerning domestic violence. The proceedings ended with a court decision prohibiting the grandmother from approaching the child for the following six months. On 25 June 2015 she moved out of the apartment which she shared with the first applicant and left the country.
48. In 2016 the social worker Y.P. brought tort proceedings against the first applicant, seeking compensation for non-pecuniary damage, as she had been harmed by the first applicant’s complaints to the authorities about her professional conduct. In 2017 the relevant court rejected the claim on the merits, having considered several psychological reports and heard numerous witnesses (see paragraph 33 above).
H. Proceedings for a change of custody
49. In the meantime, as regards the second applicant, in May 2015 V.D. had initiated proceedings for a change of custody.
1. Interim measures
50. On 30 June 2015 the Pleven District Court granted an application by V.D. for interim measures and awarded him temporary custody; the first applicantwas given contact rights.
2. At first instance
51. On 14 October 2015, ruling on the merits, the Pleven District Court rejected V.D.’s application for a change of custody. The court observed that it was undisputed that the second applicant had been living with his father before the latter had brought these proceedings. In particular, between March and May 2015 V.D. had retained the child in his home despite custody having been given to the first applicant. No proof had been presented before the court, either orally or in writing, to confirm V.D.’s submissions that he and the first applicant had reached an agreement for the second applicant to live with his father. Further, there had been several complaints by the first applicant to the prosecution service in connection with her inability to have contact with the child as determined by the courts. The second applicant was happy spending time with his mother and younger sibling, and the first applicant was not preventing his contact with his father. However, the child only saw his mother at the premises of the foundation providing social services, and not in the comfort of her own home, which suggested that V.D. had not made efforts to encourage the child to stay with his mother. Continued restrictions to the second applicant’s contact with his mother would lead to his being alienated from her, which was not in his best interests. It was also important for him to live with his younger sibling, who was of a similar age.
3. At second instance
52. Following an appeal by V.D., the Pleven Regional Court upheld the lower court’s decision in a final judgment of 1 February 2016.
53. The court observed that between December 2012 and November 2013 the second applicant had lived with V.D., and in November 2013 he had started living with the first applicant. Between December 2012 and November 2014 frequent arguments had erupted between the parents, particularly when V.D. had had to hand the child over to his mother. On such occasions the police had been called upon to intervene, as had social services.
54. After November 2014 the first applicant had continually complied with the court’s judgment by letting the second applicant see his father even more frequently than the court had determined. Between 16 March 2015 and 13 May 2015 the child had lived exclusively with his father, who had not handed him over to the mother during that period. The first applicant had complained about this to the CPU and the police, and neither authority had assisted her with collecting the child from the father.
55. The Pleven Regional Court further established that between 10 June 2015 and 14 January 2016 the second applicant had again lived with only his father. During that period the applicants had not had any meaningful contact, as they had only seen each other two or three times a month while V.D. had been collecting the younger child.
56. The court held that while earlier the second applicant had showed signs of unease when being handed over to his mother, this had grown into unwillingness on his part to follow her and live with her in her home. V.D. had been wrong to passively encourage the child’s resistance to going to stay with his mother. In the period before May 2015 V.D. had regularly failed to comply with the contact regime determined by the courts, by not returning the child to the mother at the set time and on the set day, which had negatively affected both the psychological state of the child and the effectiveness of the contact measures themselves.
57. V.D.’s overall conduct demonstrated that he had not made sufficient efforts to help the second applicant adapt to his mother’s environment. The disregard which V.D. had showed for the final judgment with which he had been obliged to comply was indicative of his lacking parenting capacity. While the second applicant undoubtedly felt ill at ease at his mother’s home, this was because of the incident when he had been hit by his grandmother, as well as his father’s conduct. The grandmother had since moved abroad, so there was no further danger of violence in the mother’s home. Moreover, the first applicant had demonstrated better parenting skills, and if the second applicant continued to be separated from her then there was a real risk that the relationship between the two would collapse. The consequences of such a development would be much graver for the child’s well-being than the stress associated with his being handed over to the mother.
I. Current situation
58. The second applicant has been living with his father since 2016. According to the first applicant, she is still not able to live with her elder child or have regular contact with him.
59. According to V.D., the elder child has regular contact with his mother, both in person and over the phone, but refuses to live with her in the apartment of his maternal grandfather. He sees his younger brother frequently, almost every weekend, at V.D.’s apartment. The first applicant sees her elder child for a few minutes when she hands over the younger child to the father. V.D. regularly pays the financial maintenance ordered by the court.
II. RELEVANT DOMESTIC LAW
A. Enforcement of judgments
60. In accordance with Article 404 of the 2007 Code of Civil Procedure (“the 2007 Code”), final judicial decisions can be subject to enforcement. Article 527 of the 2007 Code provides that if a party who is obliged to hand over a child pursuant to a final judicial decision relating to parental rights fails to do so, the bailiff can impose fines on him or her for every failure to comply with the judicial decision. In addition, the bailiff may request assistance from social services and municipal and police authorities. The bailiff can also take the child by force and hand him or her over to the parent in whose favour the decision was made.
B. Criminal sanctions for failure to ensure contact with a child
61. Article 182 § 2 of the 1968 Criminal Code, in force at the time of the events, provides that a parent or another relative who prevents contact with a child or the enforcement of a court judgment on custody can be sentenced to probation, fined up to EUR 153 and, in severe cases, sentenced to up to six months’ imprisonment or a fine of up to EUR 1,533. As of April 2010 this is an offence which is subject to public prosecution, therefore only a prosecutor can initiate such proceedings.
C. Protection of children
62. In accordance with section 23 of the Child Protection Act, measures for protecting children in their family environment include, among other things: the provision of pedagogical, psychological and legal assistance to parents who exercise parental responsibility; the provision of appropriate social services, including counselling for the child; and social work aimed at facilitating contact between parents and children and overcoming conflict in their relationship.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
63. The applicants complained that they had been unable to live together and enjoy the contact rights determined by the courts, in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
1. The Government
64. The Government advanced the argument that the application was inadmissible for failure to comply with the six-month rule. In particular, the first applicant had been expected to apply to the Court within six months of custody being given to V.D. (see paragraph 50 above), but she had failed to do so.
65. Secondly, the first applicant had failed to comply with the bailiff’s instructions of 18 October 2016 (see paragraph 27 above) and had not appealed against the decision in 2018 terminating the criminal proceedings against V.D. (see paragraph 31 above). Therefore, she had failed to exhaust domestic remedies.
66. Thirdly, the first applicant had continually refused to cooperate with social services with a view to helping the second applicant accept that he should go and live with her. That represented a failing on her part.
2. The applicants
67. The first applicant submitted that she was complaining of the national authorities’ continuing inability, lack of capacity or refusal to protect the two applicants’ right to family life. The period between June 2015 and February 2016, when V.D. had had custody of the second applicant, shold not be excluded from the examination, because during that period she had not been able to see the child, contrary to the contact schedule determined by the court.
68. Secondly, the first applicant had understood that the bailiff’s instructions had been directed only at V.D. As to the criminal proceedings against V.D., those had lasted almost three years and had had no effect whatsoever on his conduct. The passage of time – while the proceedings had dragged on and she had waited for them to accomplish something – had only contributed to her child becoming alienated from her. In any event, criminally punishing the perpetrator would not bring her child back, so that remedy was irrelevant for her complaint.
69. Lastly, the first applicant submitted that she had not rejected the preparatory measures, aimed at developing her relationship with the second applicant, proposed by the relevant authorities. However, she had consistently been at a loss after meeting with social services, as she had felt that she had been treated not like a parent with custody of her child, but like an “inadequate mother” and an offender.
3. The Court’s assessment
70. The Court observes that the first applicant’s complaint concerns her continuing inability to live with her elder child or see him in accordance with the regime determined by the court during the period when his father had custody. Therefore, the Government’s objections to the admissibility of the application on the basis of the six-month rule have to be dismissed.
71. The Court further considers that the other objections about non‑exhaustion of domestic remedies are closely linked to the merits of the complaint. It will therefore deal with them in its examination of the merits below.
72. The Court notes that a natural parent’s standing suffices to afford him or her the necessary power to apply to the Court on his or her child’s behalf too, in order to protect his or her interests (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII). Furthermore, in cases arising out of disputes between parents, it is the parent who is entitled to custody who is entrusted with safeguarding the child’s interests (see, to the contrary, Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006; see, similarly, M.R. and D.R. v. Ukraine, no.63551/13, § 40 with further reference, 22 May 2018). In the present case, the first applicant is a natural parent who has been given custody of her child, the second applicant. Consequently, she has standing to apply to the Court on his behalf.
73. The Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The applicants
74. The first applicant stated that the lack of enforcement of her custodial and visiting rights was not due to a passive behaviour on her part and that she took all necessary steps in that respect. In particular, what could potentially be interpreted as a passive attitude on her part during the initial months following her separation from V.D. was explained by her experience of systematic psychological abuse during the period when she had lived with him (see paragraphs 8 and 13 above). She also pointed to the findings of the domestic courts which had ruled on the application for a change of custody lodged by V.D. (see paragraphs 51-57 above).
75. The first applicant had approached different competent institutions in order to obtain protection of both her rights and those of the second applicant. She had sought assistance from social services, the prosecution service, the courts and bailiffs. It had been up to the competent institutions to analyse the situation and undertake the necessary measures to reunite the applicants. While she did not challenge the fact that the authorities had a margin of appreciation in that connection, she complained of the ineffectiveness of the measures implemented within that margin.
2. The Government
76. The Government pointed out that the first applicant had significantly contributed to her elder child’s alienation from her, as she had not sought contact with him during the crucial initial period, namely for about seven months after she had separated from the father. V.D. had transferred the child to her immediately after the interim measure in her favour had been adopted in September 2013. Thus, between September 2013 and March 2015 the child had lived with her continuously. Even after March 2015 there had been no lack of enforcement of the final judgment of 2014, given that the child had not been transferred to his mother because he had firmly refused. The first applicant had lived with the child in May-June 2015. As regards the period between 10 and 30 June 2015, V.D. had acted responsibly by keeping the second applicant with him, given the violence which the child had experienced in his grandparents’ apartment.
77. As regards non-enforcement of a final judgment, this was only relevant in respect of the judgment which had entered into force on 1 February 2016. It had not been enforced in full as a result of the actions of the first applicant, who had not cooperated with either social services or the bailiff.
78. As regards the other parent, V.D., he had continuously demonstrated concern for the child’s well-being, had repeatedly sought assistance from the relevant authorities, and had never objected to the child’s transfer to the first applicant.
79. All relevant authorities had consistently acted appropriately and promptly. The second applicant was strongly attached to his father, and it was in his interests to live with V.D. and go to his mother only once he readily agreed to do so.
3. The Court’s assessment
80. The relevant general principles have been summarised in the case of Strand Lobben and Others v. Norway ([GC], no. 37283/13, see in particular §§ 202-204, 207 and 211, 10 September 2019).
81. The Court considers that the two applicants’ relationship with each other is protected under Article 8.
82. The parties disagree on whether the first applicant’s custody and visiting rights, as determined by the domestic courts, have been fully enforced. Relying in particular on the findings of the domestic courts, the Court finds it established that since 18 September 2013, when the domestic courts granted the applicant temporary custody, the first applicant has experienced systematic difficulties in exercising her parental and visiting rights, and that for lengthy stretches of time the two applicants have not been able to live together in violation of the rulings of the domestic courts (see paragraph 23 above). Thus, V.D. retained the child between 16 March 2015 and 13 May 2015, and then again between 10 June 2015 and 14 January 2016 (see paragraphs 53-55 above). Furthermore, before May 2015 V.D. regularly failed to comply with the contact regime as determined by the courts, by not returning the child to the mother on the set date and at the set time (see paragraph 56 above). It appears that after February 2016 the second applicant continued to live with his father, against the mother’s wishes and in defiance of two judicial decisions (see paragraph 58 above).
83. Once put on notice of this situation, the authorities were under a positive duty to assist the applicants with enjoying the rights determined by the domestic courts. As within the domestic system different authorities – bailiff, social services, the police, the prosecution service – had responsibilities in facilitating the contact between the applicants in the implementation of the court decisions, the Court will assess the actions of all those authorities. In doing so it will assess whether the national authorities have taken all necessary steps that could reasonably be demanded in the circumstances, aimed at allowing the individuals concerned to reunite and preserve the relationship between them (see Kříž v. the Czech Republic, no. 26634/03, § 85, 9 January 2007). Given the child’s very young age, the adequacy of the measures pursued by the authorities is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him (see Edina Tóth v. Hungary, no. 51323/14, § 53 with further reference, 30 January 2018).
84. The Court observes that – twice – the domestic courts examined the situation of the child and both parents, and – twice – they assessed positively the parental skills of the first applicant and the relationship between the first and the second applicant, and concluded that custody should be given to and remain with the first applicant (see paragraphs 16-22 and 51-57 above). In the second set of proceedings they expressly took into account the objections against granting custody to the first applicant, on which the enforcement of the first judgment was obstructed, and rejected them. They gave their rulings after an in-depth consideration of all factual circumstances and a careful weighing of the different interests at stake, with a constant concern for the best interest of the child.
85. Importantly, during the second set of proceedings, the courts specifically established that the failure to comply with the first judgment in the first applicant’s favour was due to the other parent’s lack of cooperation (paragraphs 51 and 56 above). His disregard for the judgments awarding custody to the mother had been compounded with his passive encouragement of the child’s resistance to going to live with her, in defiance of the court’s decisions.
86. The domestic courts’ conclusions that the other parent persistently obstructed the enforcement of the judicial decisions, however, does not seem to have been met with an appropriate response by the authorities charged with the enforcement of those decisions. Thus, both the bailiff and the prosecution appear to have ignored his conduct and its consequences, given that no compulsory measures whatsoever were undertaken in his regard. The Court is particularly struck in this connection that the only time the first applicant was found not to have complied with the contact regime determined by the courts, she was effectively fined with a non-negligible sum (see paragraph 34 above), while no such measures were ever taken with respect to the other parent, despite his persistent refusal to comply with the judicial decisions.
87. Following the first judgment granting custody to the first applicant, there was a long and unjustified delay in the bailiff’s activity due to the failure to summon V.D. to voluntarily comply with the judgment (see paragraphs 24-25 above). In accordance with the relevant domestic legislation, the bailiff could have imposed fines on a parent who failed to hand over the child, in this case V.D., every time this occurred (see paragraph 60 above). However, the bailiffs in the proceedings brought by the first applicant did not make use of this option even once.
88. The bailiffs could also have sought the assistance of the police (see paragraph 60 above), yet they did not attempt to do so. As can be seen from the facts, on the couple of occasions when the first applicant and her father called the police, their intervention was highly effective (see paragraph 32 above). Instead, it appears that after another long delay related to the initial bailiff’s withdrawal, the new bailiff who took over the case remained inactive for more than a year after instructing the applicant to make an effort and meet with V.D. in institutional settings in order for the child to be handed over to her (see paragraph 27 above).
89. Turning to the criminal proceedings, the Court notes that the prosecuting authorities repeatedly closed those proceedings without taking any measures for the enforcement of the judgments on custody. This happened even after a court had quashed a prosecution’s decision terminating the proceedings, having explicitly found that V.D. had obstructed the implementation of the custody judgments and that it was unacceptable that the prosecution service had adopted a different stance on a question decided by a final judicial decision (see paragraph 30 above). The Court finds that, in view of the prosecution service’s continued reluctance to prosecute, despite there being court findings in that regard, the first applicant’s failure to appeal against the final decision terminating the proceedings (see paragraph 31 above) was not decisive as regards the authorities’ obligation to act in order to protect her right to live with her elder child.
90. The Court finds that the actions of the social services were also deficient. Although the first applicant sought their assistance many times after the court decision on interim measures giving her custody, those authorities did not take measures to implement the judicial decision on custody rights. Rather, they focused on preparing reports assessing whether the first applicant should have custody rights (see paragraphs 14, 18, 39 and 43 above) or recommending that she make an effort to improve her relations with V.D. (see paragraphs 33, 37 and 42 above), when the irreversible rupture in those relations had been the reason why she had sought the authorities’ help in the first place.
91. The Court finds particularly telling in that regard the episode where a social worker intervened over the telephone in the transfer of the child, criticising the first applicant for her parental skills, rather than facilitating the transfer. It took the intervention of a police officer on the spot who apparently was more successful in calming the child and proceeding to a successful transfer. This episode also served as a basis for the social services report challenging the first applicant’s parenting skills and expressing a view in favour of custody being granted to V.D., a report criticised and rejected by the domestic courts (see paragraph 19 above).
92. The social services do not seem to have taken the necessary and reasonable steps to enforce the first applicant’s custody rights after the judicial decision became final either. Several preparatory meetings took place as late as in July 2015, many months after the final decision of the domestic courts granting custody rights to the first applicant. They were organised by a foundation providing social services with a view to facilitating the child’s acceptance of the mother, at the foundation’s premises and in the presence of V.D. (see paragraphs 40-41 above). None of the above is indicative of the authorities’ acting with special diligence and speed when handling the applicants’ situation.
93. As regards the first applicant’s conduct before, during and after the proceedings for custody of the child, the Court observes that she did not remain passive. She actively sought the implementation of the interim measures. After the adoption of the final judgment granting her custody, she promptly brought enforcement proceedings, which is clearly indicative of her inability to live with the child as determined in the judicial decision. She also complained to the prosecution service numerous times about her inability to recover the child. In addition, she turned to social services on many occasions, particularly throughout 2014. She repeatedly raised concerns about her inability to spend time with her elder child owing to obstacles created by V.D. notwithstanding the judicial decision giving her interim custody. Likewise, she asked different authorities for assistance (see paragraph 23 above).
94. Lastly, the Court observes that the second applicant is still living with V.D. and the first applicant has continued to seek effective assistance from the authorities, although she has been reluctant to continue taking part in meetings at the foundation’s premises, considering them futile, given the circumstances in which they had been organised (see paragraphs 40, 41 and 44 above). The bailiff and the social services have continued to follow the case with varying levels of intensity (see paragraphs 28, 45 and 46 above). However, the Court finds that, in the circumstances, the initial period of time was decisive for the effectiveness of any intervention by the authorities. Their omissions in the early stages – in particular in 2014 and 2015 – allowed the difficulties relating to handovers to become worse, and perpetuated the relevant obstacles. This is sufficient for the Court to conclude that the authorities did not do all that was reasonably possible in order to reunite mother and child.
95. In view of the foregoing, the Court dismisses the Government’s preliminary objection that the first applicant failed to exhaust all available domestic remedies and, ruling on the merits, finds that there has been a violation of Article 8 of the Convention as regards both applicants.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
96. The applicants complained that they had not had an effective domestic remedy in connection with their complaint that they had not been able to be reunited. They relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”
97. The Government contested their allegations.
98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
99. The Court finds that, in the instant case, the effectiveness of the authorities’ actions – actions aimed at allowing the first applicant to have meaningful contact with her elder child, and the second applicant to have contact with his mother – lies at the heart of the applicants’ complaint under Article 13. The issues linked to the measures pursued by the authorities in the context of protecting the applicants’ right to family life have been examined under Article 8 above, as has the effectiveness of those measures. The Court therefore considers that no separate issue arises under Article 13 (for a similar approach, seeDimova and Peeva v. Bulgaria, no. 20440/11, § 47, 19 January 2017).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
100. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
101. The applicants claimed 40,000 euros (EUR) each in respect of non‑pecuniary damage.
102. The Government considered that the above claims were unjustified.
103. The Court considers that the failure to reunite the two applicants must have caused the first applicant frustration and suffering and prevented the second applicant from developing relations with his mother. Accordingly, it awards the applicants EUR 7,500 jointly in respect of non‑pecuniary damage.
B. Costs and expenses
104. The applicants also claimed EUR 5,284.75 for the costs and expenses incurred before the Court.
105. The Government submitted that the sum claimed for legal fees, EUR 4,920, was excessive as regards the number of hours claimed (forty‑one) and the hourly rate (EUR 120). They also objected to the sums claimed for postage and translation.
106. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 2,700 for the proceedings before the Court, of which sum EUR 900 is to be paid directly into the bank account of the applicants’ representatives. The above amount covers legal fees incurred in the context of the proceedings before the Court and translation expenses. The amount in respect of legal fees is calculated with reference to the hourly rate of EUR 70 applied in respect of applicants’ lawyers’ fees in recent cases against Bulgaria of comparable complexity (see Aneva and Others v. Bulgaria, nos. 66997/13 and 2 others, § 135, 6 April 2017).
C. Default interest
107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s preliminary objection as regards the first applicant’s failure to exhaust domestic remedies and dismisses that objection;
2. Declaresthe application admissible;
3. Holdsthat there has been a violation of Article 8 of the Convention;
4. Holdsthat no separate issue arises under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,700 (two thousand seven hundred euros) to the first applicant, plus any tax that may be chargeable to her, in respect of costs and expenses, of which EUR 900 to be paid directly into the bank account of the applicants’ representatives;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 6 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Ganna Yudkivska
Deputy Registrar President
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