The case concerns the applicant\u2019s complaints that the court decisions that his son was to reside with the child\u2019s mother, and the State authorities\u2019 actions regarding the applicant\u2019s contact with his son, were in breach of Article\u00a08 of the Convention.<\/p>\n
SECOND SECTION Art 8 \u2022 Positive obligations \u2022 Family life \u2022 Domestic courts\u2019 decisions establishing child\u2019s residence with mother, reasoned and correctly referring to Court\u2019s case-law \u2022 Applicant able to put forward arguments on residence and contact rights, having access to all relevant information \u2022 Possibility of amending residence order if circumstances change \u2022 Authorities\u2019 obligation to provide assistance to applicant in highly conflictual proceedings fulfilled, notwithstanding mother\u2019s lack of cooperation resulting in limited contact between father and child<\/p>\n STRASBOURG This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n In the case of Ba\u0161kys v. Lithuania,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Having regard to:<\/p>\n the application (no.\u00a047410\/20) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Lithuanian national, Mr Ar\u016bnas Ba\u0161kys (\u201cthe applicant\u201d), on 20\u00a0October 2020;<\/p>\n the decision to give notice to the Lithuanian Government (\u201cthe Government\u201d) of the complaints concerning the applicant\u2019s right to be in contact with his son and the court decisions that the child should reside with his mother, under Article\u00a08 of the Convention; Delivers the following judgment, which was adopted on that date:<\/p>\n INTRODUCTION<\/strong><\/p>\n 1. The case concerns the applicant\u2019s complaints that the court decisions that his son was to reside with the child\u2019s mother, and the State authorities\u2019 actions regarding the applicant\u2019s contact with his son, were in breach of Article\u00a08 of the Convention.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1979. It appears from his latest observations that he currently lives in Lithuania (see paragraph\u00a035 below). The applicant was represented by Ms D. Bal\u010di\u016bnien\u0117, a lawyer practising in Joni\u0161kis.<\/p>\n 3. The Government were represented by their Agent, Ms K.\u00a0Bubnyt\u0117-\u0160irmen\u0117.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. On 25\u00a0May 2013 the applicant and A.B. got married in Lithuania. On 18\u00a0July 2013 a son, Ar.B., was born to them.<\/p>\n 6. It appears from the court decisions that between October 2013 and February 2014 the family lived in the United Kingdom, where their relationship became tense. On 5\u00a0February 2014 A.B. returned with the child to Lithuania, to stay.<\/p>\n 7. On 21\u00a0October 2016 the Kaunas District Court granted a request by A.B. for a divorce, the applicant having acknowledged that the marriage had disintegrated owing to the fault of both spouses, a fact which had also been noted by the court. The court established that Ar.B. should reside with his mother, and also ordered the applicant to pay child maintenance payments \u2013190 euros (EUR) \u2013 monthly.<\/p>\n 8. The court also approved a friendly settlement agreement between the applicant and A.B., pursuant to which the applicant was to see his son every second weekend. In addition, the applicant and his son could communicate via Skype once a week, and the applicant could spend twenty-one\u00a0days with his son during summer holidays. Once the child reached four years of age, the applicant could spend four weeks a year with him and take the child abroad for up to ten days. The child\u2019s mother was to provide the child with travel documents and clothes, and any information necessary for the child\u2019s being with the father.<\/p>\n 9. On 15\u00a0September 2017 the Kaunas District Court, acting on an application by a bailiff, imposed a one-time fine of EUR\u00a050 on A.B., for having, by both her actions and her failure to act, failed to execute the court\u2019s decision, and thus having denied the child\u2019s right to communicate with the father in order to maintain their connection. The bailiff noted that starting on 7\u00a0May 2017, A.B. had failed to comply with the contact order: she had failed to allow the applicant not only to communicate with the child, but also to see the child, and [even] to congratulate the child on his birthday. The bailiff pointed out that the applicant had been living in the United Kingdom. He had arrived to see the child each time as set out in the friendly settlement agreement approved by the court (see paragraph 8 above).<\/p>\n 10. In 2018 A.B. started fresh court proceedings for amendments to the contact order (see paragraph\u00a08 above) and for an increase in child maintenance payments. She also submitted that the child did not wish to communicate with his father. The applicant, for his part, argued that the child communicated with him willingly. In addition, the applicant did not object to a court-appointed psychological examination, which had been ordered by the Kaunas District Court in February 2018.<\/p>\n 11. Having examined the child, and the documents in the civil case file, in report no.\u00a0103MS-124\/2018 of 18\u00a0June \u2013 5\u00a0July 2018, the child psychologist of the State Forensic Psychiatry Service (Valstybin\u0117 teismo psichiatrijos tarnyba) concluded that the child\u2019s understanding of the world corresponded to his age. The child could not have expressed an independent opinion about the questions that mattered in the civil proceedings because he had been too young and had suffered from a conflict of loyalties \u2013 he felt anxiety and also felt unsafe when unrestrictedly expressing love towards his father, with whom he did not live. The child\u2019s perception that separation from his mother and being with his father was threatening to him was not normal but was a consequence of the parents\u2019 conflict and the mother\u2019s position which fostered anxiety. The mother was the main object of attachment and the boy was mirroring her position. That notwithstanding, when direct and uninterrupted communication between the child and the applicant was being observed, the child repeatedly asked to be able to communicate with his father, which showed that the child felt safe and happy with him. The psychologist recommended that contact between the child and the applicant take place without the presence of A.B. The mother\u2019s attitude, if she could be more proactive and, for example, tell their son that he was safe with the father, and that the father loved the child and would return him back to the mother, was particularly important.<\/p>\n 12. By a ruling of 10\u00a0September 2018, the Kaunas District Court, with the participation of representatives of the childcare authorities, the applicant, his lawyer and the child\u2019s mother, granted the applicant\u2019s request for temporary protective measures and ordered that the applicant and the child were to meet and be able to communicate every second weekend. Given the fact that, as noted by the psychologists, the child showed a negative reaction towards the applicant when in the presence of the mother, the mother was to leave the child at any indoor play area in Kaunas, the father was to pick him up from there, and, during the child\u2019s time with the father, A.B. was not to disturb their communication. In addition, the applicant could communicate with the child every Tuesday and Friday via Skype, for thirty minutes, and at a designated time. The court did not specify the contact regime during the holidays, as the applicant asked the court not to rule on that because the holiday period was over.<\/p>\n 13. By the same ruling, the court dismissed A.B.\u2019s counterclaim that the child should only see the father every second Friday at a public institution \u2013 the Institute of Family Relations \u2013 in the presence of a psychologist. The court also dismissed A.B.\u2019s claims that the child should not be allowed to stay with the father overnight, and that he should be able to communicate with the father for a shorter time, namely fifteen minutes. The court held that it was important to guarantee communication between the applicant and the child that was as frequent and as close as possible, and without an external person being present, who might make their communication harder. Although A.B. had claimed that it was necessary to take into account the child\u2019s opinion regarding communication with the father, the court referred to the psychological examination report (see paragraph\u00a011 above) and considered that the child could not express an independent opinion on the questions that were important in the case. Besides, in this case to ask the child\u2019s opinion regarding his communication with the father not only ran counter to the child\u2019s interests, but would also not diminish his separation anxiety and his emotional dependence on the mother. The court held that the mother was to not only refrain from obstructing the applicant in communicating with their son, but was to also \u201cin all ways\u201d encourage the child to communicate with the father. Accordingly, the mother\u2019s unwillingness to let their son stay with the father overnight, and her wish to shorten the time for their communication via Skype, was nothing but an \u201cunreasonable restriction on the applicant spending as much time as possible with his son\u201d. Given that the applicant and his son\u2019s connection had not been disrupted, A.B.\u2019s requests were to be dismissed.<\/p>\n 14. On 20\u00a0June 2019, during court proceedings on the merits (see paragraph\u00a010 above), the applicant\u2019s lawyer requested that temporary protective measures be applied and that the child be able to reside with the applicant at the applicant\u2019s parents\u2019 home in Lithuania from 1 to 31\u00a0July, so that they could interact. The applicant\u2019s lawyer noted that childcare specialists could come to the home and the applicant and the child would visit a psychologist. If the child did not wish to stay with the father, or if a psychologist recommended that the child should be returned to the mother, the applicant would not object.<\/p>\n A.B. objected to the request for the child to stay with the father, irrespective of the duration of that stay.<\/p>\n The childcare authorities agreed to the child staying with the father for a period of one month, since the child had been \u201ccompletely separated from the father [with whom] he was not allowed to communicate\u201d. The authorities also noted that as of 7\u00a0June 2017, A.B. had completely failed to execute the Kaunas District Court\u2019s decision, in that manner breaching the child\u2019s right to communicate with the father. That abuse of maternal powers (piktnaud\u017eiavimas t\u0117v\u0173 vald\u017eia) by A.B. had been damaging to the child.<\/p>\n 15. On 27\u00a0June 2019 the Kaunas District Court granted the applicant\u2019s request in part. On the basis of the parties\u2019 observations and the childcare authorities\u2019 explanations, the court found it \u201cevident\u201d that A.B. had not only failed to adhere to the contact order that had been previously agreed, but had also \u201cviciously avoided allowing the underage son to fully communicate with [the applicant] in the future\u201d. The court thus ordered that the child would reside with the father from 1 to 16\u00a0July 2019, as the court\u2019s decision on the merits was to be delivered on the latter date.<\/p>\n 16. By a decision of 16\u00a0July 2019, the Kaunas District Court granted the applicant\u2019s request regarding the modalities of the contact with his son: the applicant could see the child every second weekend, without the parents\u2019 meeting during the child\u2019s transfer; the applicant could also communicate with the child via Skype twice a week, on Tuesdays and Fridays at 8 p.m. to 8.30 p.m. without A.B. being present in the room during the child and the applicant\u2019s conversation; and he could spend a twenty-one-day holiday with the son each year, including taking the child abroad. The applicant was also ordered to pay EUR\u00a0210 in childcare costs and A.B. was ordered not to obstruct the father and son\u2019s communication.<\/p>\n Subsequently, by a ruling of 22\u00a0January 2020, the Kaunas Regional Court essentially maintained the above contact order; it specified that to protect the child\u2019s emotional well-being, the transfer was to take place at a psychologist\u2019s office.<\/p>\n 17. On the merits, the Kaunas District Court referred to experts\u2019 conclusions, witnesses\u2019 testimony, and the parents\u2019 arguments, and held that the child had had a conflict of loyalties because of both parents\u2019 conflictive behaviour. The court also noted that both parents had constantly filmed their communication with the child, whose rights could thereby be breached, despite the fact that the child had been used to it. From those recordings it was also clear that A.B. showed a dominant and demeaning attitude towards the applicant when he communicated with the child in her home. A neutral place to transfer the child to the applicant had, therefore, to be designated. The court also pointed out that A.B. had been visiting psychologists for consultations, however, it would perhaps be beneficial for her to attend such consultations not with the aim of determining how to make the child and father\u2019s relationship stronger, but in order to assess her own anxieties and fears about communication between the father and the son; otherwise, without any tangible result from those consultations, there was an impression that they had been in vain.<\/p>\n 18. On 14\u00a0November 2019 the Kaunas District Court granted an application brought by a bailiff, and fined A.B. EUR\u00a050 to be paid to the applicant for each day that she did not comply with a writ of execution of the Kaunas District Court issued on 1\u00a0June 2017. The court established that as of 2017 the applicant had had no opportunity to communicate with his child, despite his returning to Lithuania from the United Kingdom every second weekend in order to meet his son, for two years. Written evidence in the case confirmed that A.B. had systemically breached the applicant\u2019s right to see his son. Among other things, as confirmed by the bailiff, A.B. would not deliver the child to a children\u2019s indoor play area. As confirmed by the psychologists, even though the applicant had sought to communicate with his son, it was clear that the never-ending conflict between the parents had not only created additional tension between them, but had also been damaging to the child. The court emphasised that A.B. was to seek opportunities to create an environment for the child which would allow him to have contact with both parents. It also emphasised that the behaviour of both parents showed a lack of respect for each other, however they should nevertheless cooperate in the interests of the child.<\/p>\n By a ruling of 6\u00a0February 2020, the Kaunas Regional Court dismissed an appeal by A.B. and left the district court\u2019s decision unchanged.<\/p>\n 19. In reply to a request for information by the Kaunas District Court on 9\u00a0June 2020, on 15\u00a0June 2020 the childcare authorities stated that their specialists had been actively participating in the dispute between the applicant and A.B.: they had been involved in the court proceedings; had provided information to the bailiff regarding execution of the court decisions; taken part in the meetings with the psychologists at the bailiff\u2019s office; and provided the parents with information regarding specialists such as psychologists, and establishments which could provide assistance. They had also seen the child, at the applicant\u2019s request, in order to evaluate his \u201cstate of feeling threatened\u201d. Childcare specialists had concluded that A.B. had not shown any wish or initiative that the applicant should have even the slightest possibility of seeing his son and communicating with him. She would communicate with the childcare authorities, when it was explained to her how to behave towards the child; yet in reality she had taken no steps to make the applicant and the child\u2019s communication feasible. After almost every court hearing, with the mediation of the judge and childcare specialists, the way in which the applicant could see the child, even for a short time, would be agreed, yet A.B. had not kept her promises: she would not take the child to the indoor play area nor would she set off from home with the child before the applicant\u2019s arrival there.<\/p>\n 20. In reply to a request by the applicant\u2019s lawyer of 17\u00a0February 2020, a psychologist stated that by a court ruling of 22\u00a0January 2020, she had been instructed to mediate when transferring the child from A.B. to the applicant, so that the parents would not meet in front of the child. The psychologist had invited A.B. to come to her office with the child before the meetings, so that it would become more familiar to him. The psychologist had also assured A.B. that no force would be used against the child should he not wish to go with the father. Despite the applicant contacting the psychologist one week before the planned transfer of the child on 1\u00a0February 2020, in order to make preparations for that meeting, and their discussing how to make the meeting interesting for the child, A.B. had not delivered the child on the set date. The psychologist had contacted A.B., who had subsequently failed to show up, claiming that the child had refused to go, on any of three other dates \u2013 10, 13 and 15\u00a0February \u2013 which A.B. had claimed to be convenient for her. The applicant had thus gone to the psychologist\u2019s office on 15 February 2020 to no avail.<\/p>\n 21. By a ruling of 21\u00a0April 2020, the Kaunas Regional Court dismissed appeals by the applicant and A.B. and left the Kaunas District Court\u2019s decision of 16\u00a0July 2019 (see paragraphs\u00a016 and 17 above) unchanged. The ruling was made in proceedings in which there had been an oral hearing with the participation of the applicant, his lawyer, A.B. and the representative of a childcare institution.<\/p>\n 22. On the merits, the Regional Court firstly referred to Article 3.174 of the Civil Code which states that the court is to resolve a child residence dispute having regard to the interests of the child and the child\u2019s wishes, and held that the place of the child\u2019s residence should remain with his mother, as had been established by the first-instance court. A.B. had not guaranteed that the child would be raised by both parents, and childcare specialists had supported the conclusion that it would be premature to change the child\u2019s place of residence, since the mother had been the main object of his attachment and the child was fully dependent on her and had never lived without her. In addition, during the appellate court proceedings the applicant had \u201cde facto confirmed\u201d the first-instance court\u2019s conclusion that at present he was not ready for the child to live with him. There remained some uncertainty about where the child would live, what educational establishment he would attend and what living and educational conditions would be provided to him by childcare institutions in the United Kingdom. It was also unknown how the child\u2019s psychological state would be affected should he live without the person closest to him \u2013 his mother. Overall, there was no reason to conclude that changing the child\u2019s place of residence would be in his best interests as the only means to guarantee that he would be raised by both parents. The appellate court also referred to the Court\u2019s case-law in Gineitien\u0117 v. Lithuania (no. 20739\/05, \u00a7 38, 27\u00a0July 2010), and G.B.\u00a0v.\u00a0Lithuania (no. 36137\/13, \u00a7\u00a0105, 19\u00a0January 2016), to the effect that it was necessary to take a child\u2019s opinion into account. In the instant case, however, the child had been too young to express his opinion.<\/p>\n 23. Secondly, as to the contact order, a situation that was abnormal and disturbing for the child was being created by both parents, which had been noted in a court ruling of 5\u00a0February 2016 in respect of an administrative offence, wherein the applicant had been subjected to a penalty for using swear words at A.B.\u2019s home in front of the child; A.B. had raised her voice during that incident in front of the child without trying to hide the parents\u2019 conflict from the child. The applicant had also not followed up on the contact order and not taken care of the child during the child\u2019s sickness; he had not showed up during the child\u2019s celebrations in kindergarten. Similarly, in 2017 the applicant had once failed to return the child to A.B. on a Sunday, instead for objectively valid reasons promising to return him on Monday; he had alerted A.B. to what he was doing, yet A.B. had arrived to take the child to the police during the night, on account of which the child had been woken up and traumatised, which emotion and memory lasted to this day (see also paragraph 26 below). These actions on the part of A.B. could not be seen as beneficial to the child.<\/p>\n 24. The Kaunas Regional Court also noted that medical data showed that the child had some development issues, but not psychological ailments, which meant that there was no reason to prevent his communication with his father, contrary to what had been suggested by A.B., and that the applicant had been unable to communicate with the child despite the fact that during the court proceedings the applicant had come to Lithuania \u201cover one hundred times\u201d. The psychologists who had testified before the first-instance court had stated that the applicant and A.B. had disagreed on what kind of psychological assistance they needed; the parents had also disagreed on whether the child\u2019s connection with the father should be strengthened and A.B. had insisted on participating in the applicant\u2019s contact with the child. It was obvious that it was not the applicant, but A.B., who had manipulated the child, and made communication between the child and the applicant impossible in any way. In addition, the execution of the court decision regarding the contact order had been complicated not by the applicant but by A.B. manipulating \u201clegal theory, the child\u2019s emotions, and his attachment to the mother\u201d. In the light of the above, and referring to the child\u2019s interest in communicating with both parents, as established in domestic law, including by Article\u00a04 \u00a7\u00a01 of the Law on the Fundamentals of the Protection of Children\u2019s Rights, and Article 3.170 and 3.179 of the Civil Code (see Z.J. v. Lithuania, no.\u00a060092\/12, \u00a7\u00a7\u00a069 and 70, 29 April 2014), as well as the childcare authorities\u2019 conclusions received by the court on 20 February 2020, the appellate court held that the child and father\u2019s contact order would not be implemented if the child was taken [for a contact visit] from the child\u2019s home. A neutral place was necessary, and an indoor play area would be appropriate for the age of the child, who was seven years old and was about to go to school. The office of the psychologist who had been involved in the case was on the fifth floor and A.B. stated that she was not able to carry the child there.<\/p>\n 25. By rulings of 25\u00a0June 2020 and 27\u00a0July 2020, the Supreme Court refused to accept for examination an appeal on points of law by the applicant; it had raised no important legal issues, and there had been no breaches of substantive or procedural legal norms by the lower courts.<\/p>\n 26. As stated by the Government in their observations of 10 September 2021, and not contested by the applicant in his observations of 28\u00a0October 2021, the applicant and his son had met on the following occasions. On 28\u00a0January 2017 the applicant had stayed with his son at the applicant\u2019s parents\u2019 house in Lithuania. Following the procedure for communication that had been established, the child was to be returned to his mother on 29\u00a0January 2017. Having regard to the fact that the applicant refused to return the child on that day and fearing that the applicant might take the child abroad, A.B. had called the police (see also paragraph\u00a023 above). From 25\u00a0April to 7\u00a0May 2017, the applicant and the child had stayed at the applicant\u2019s parents\u2019 house. Following the procedure for communication that had been established, the child was to be returned to his mother on 2\u00a0May 2017; the applicant had returned the child on 7 May 2017, stating that the child had been unwell. The applicant and the child had also met at the Institute of Family Relations on 15\u00a0December 2017, and on 12 and 15\u00a0January and 23\u00a0March 2018, in the presence of a psychologist. The applicant had also visited his son on 27\u00a0January 2018 at the child\u2019s residence; on 3\u00a0September 2018 the applicant had played with his son in a courtyard; on 5\u00a0September 2018 the applicant had gone to his son\u2019s judo training class, without their having communicated directly; and on 15 April 2019 the applicant had visited his son in a hospital.<\/p>\n 27. In their observations of 30\u00a0November 2021, the Government added that the applicant had met his son on 3\u00a0August 2021 and on 25\u00a0October 2021.<\/p>\n RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/strong><\/p>\n 28. The domestic law and practice in childcare and child custody cases has been set out in Z.J. v. Lithuania (cited above, \u00a7\u00a7 68-70); G.B. v. Lithuania (cited above, \u00a7\u00a7 54-63); Gineitien\u0117 (cited above, \u00a7\u00a7 25-28); and Manic v. Lithuania (no. 46600\/11, \u00a7 67, 13 January 2015).<\/p>\n THE LAW<\/strong><\/p>\n ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/strong><\/p>\n 29. The applicant was dissatisfied with the decisions of the domestic courts which fixed the mother\u2019s home as his son\u2019s place of residence. He also complained that he had not had effective contact rights. The applicant relied on Article 8 of the Convention which, in so far as relevant, provides as follows:<\/p>\n \u201c1. Everyone has the right to respect for his … family life …<\/p>\n 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 … for the protection of the rights and freedoms of others.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 30. The Government contended that the applicant\u2019s complaints were manifestly ill-founded.<\/p>\n 31. Regarding the applicant\u2019s complaint about lack of contact with his son, the Government also submitted that, if the applicant was of the view that the Lithuanian authorities had failed to duly perform their duties, he could have initiated administrative proceedings to challenge their actions or failure to act. He could also have initiated separate proceedings for redress against the State, if he considered that the State authorities had failed to act in a timely manner in his case thus causing him damage. He could not therefore be considered as having exhausted domestic remedies.<\/p>\n 32. The applicant disagreed.<\/p>\n 33. The Court finds that the Government\u2019s objection about exhaustion of the domestic remedies is intrinsically linked to the merits of the applicant\u2019s complaint, and thus joins it to the merits.<\/p>\n 34. The Court also notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n (a) The applicant<\/p>\n 35. The applicant disputed the domestic courts\u2019 conclusion that the change of his son\u2019s residence to that of the applicant would not have been in the best interests of the child. In his observations of 28\u00a0October 2021, the applicant stated that \u201cat present\u201d he had returned to live in Lithuania. However, three years of court proceedings proved that A.B. had manipulated the child. The applicant appeared to imply that any new proceedings concerning the child\u2019s place of residence would be futile, given the child\u2019s emotions and attachment to his mother.<\/p>\n 36. The applicant also complained that the Lithuanian authorities had not ensured that A.B. would allow the child and the applicant to communicate in accordance with the established procedures for communication, despite the forensic experts\u2019 findings regarding the child\u2019s inner conflict of loyalties (see paragraph\u00a011 above). He also contended that the authorities had not developed any coherent child support strategy. Although they had made recommendations to A.B., they had not effectively monitored the implementation of those recommendations. However, the applicant agreed that in court the childcare authorities had supported his interests. The applicant lastly submitted that given the clear fact that A.B. had not followed any court-established procedure for communication, the only way to protect the child was to remove him from the damaging custody of A.B. and to establish his place of residence with the father.<\/p>\n (b) The Government<\/p>\n 37. The Government did not contest the argument that the domestic courts\u2019 decisions establishing the applicant\u2019s son\u2019s place of residence with his mother and not with the applicant had interfered with the applicant\u2019s right to respect for his family life (they referred to Elsholz v. Germany [GC], no.\u00a025735\/94, \u00a7\u00a043, ECHR 2000-VIII). However, having regard to the criteria established in the Court\u2019s case-law regarding the positive obligations inherent in effective respect for family life, and regarding the justifications for interference listed in Article 8 \u00a7 2, the Government maintained that in the decisions at issue the margin of appreciation granted to the Contracting States, which is rather wide in the sphere of family law, had not been overstepped. The Lithuanian courts\u2019 decisions were in accordance with the domestic law and served to protect the interests of the applicant\u2019s child. Moreover, the interference complained of was necessary in a democratic society within the meaning of Article 8 \u00a7 2. The child\u2019s well-being was one of the main principles guiding the Lithuanian courts in this case and a drastic change of the child\u2019s place of residence would have been traumatising. Lastly, the applicant was not precluded from applying to court for a change of the child\u2019s place of residence in the future.<\/p>\n 38. Regarding the applicant\u2019s right to be in contact with his son, the Government submitted that contact had been prevented because of a lack of cooperation between the parents. However, support had been provided to the applicant by the State throughout the proceedings. A.B. had been subjected to a penalty, but the State authorities\u2019 possibilities of applying coercion when ensuring communication between the father and the son had been limited.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 39. The general principles on custody and contact rights have been summarised in the case of Khusnutdinov and X v. Russia (no. 76598\/12, \u00a7\u00a7\u00a076-83, 18\u00a0December 2018).<\/p>\n 40. The Court notes that the applicant\u2019s grievance was twofold: firstly, he complained about the domestic courts\u2019 decisions that the child\u2019s place of residence would remain the child\u2019s mother\u2019s home. Secondly, he was dissatisfied with the way in which the State authorities had implemented their positive obligations inasmuch as they concerned the applicant\u2019s right to maintain contact with his son. The Court will examine these grievances in sequence.<\/p>\n (a) Whether the case should be examined from the standpoint of the State\u2019s negative or positive obligations<\/p>\n 41. The Court reiterates that the mutual enjoyment by parent and child of each other\u2019s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention.<\/p>\n In the instance case, the Court considers \u2013 and this was acknowledged by the Government \u2013 that the court decisions establishing that the applicant\u2019s son should live with his mother amounted to an interference with the applicant\u2019s right to respect for his family life, as guaranteed by Article 8 (see G.B. v. Lithuania, cited above, \u00a7\u00a087).<\/p>\n Further, in relation to the State\u2019s positive obligations, the Court has repeatedly held that Article\u00a08 includes a parent\u2019s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact disputes concerning children arise between parents (see, mutatis mutandis, Manic, cited above, \u00a7\u00a0101 in fine; Stank\u016bnait\u0117 v. Lithuania, no.\u00a067068\/11, \u00a7\u00a0113, 29\u00a0October 2019, and Khusnutdinov and X, cited above, \u00a7\u00a078). It is thus in the light of the State\u2019s positive obligations under Article\u00a08 of the Convention that the Court will examine whether the difficulties in enforcing the court decisions for protective measures regarding the contact between the applicant and his son amounted to a breach of the applicant\u2019s right to respect for his family life.<\/p>\n (b) As to the issue of residence<\/p>\n 42. An interference into the mutual enjoyment by the parent and child of each other\u2019s company entails a violation of Article 8 unless it was \u201cin accordance with the law\u201d, had an aim or aims that was or were legitimate under Article\u00a08 \u00a7\u00a02, and was \u201cnecessary in a democratic society\u201d for the aforesaid aim or aims (see Strand Lobben and Others v. Norway [GC], no.\u00a037283\/13, \u00a7 202, 10\u00a0September 2019).<\/p>\n (i) In accordance with the law<\/p>\n 43. The Court observes that, as regards the issue of the child\u2019s residence, the interference had a basis in national law, namely Article 3.174 of the Civil Code (see paragraph\u00a022 above).<\/p>\n (ii) Legitimate aim<\/p>\n 44. In the Court\u2019s view, the relevant legal measures are clearly designed to protect children and there is nothing to suggest that they were applied in the present case for any other purpose. The interference in question \u2013 intended as it was to safeguard the development of Ar.B. \u2013 had, therefore, for the purposes of paragraph 2 of Article 8, the legitimate aims attributed to it by the Government (see also Z.J. v. Lithuania, cited above, \u00a7\u00a095, and G.B. v. Lithuania, cited above, \u00a7\u00a090).<\/p>\n It therefore remains to be examined whether the refusal to make a residence order in the applicant\u2019s favour can be considered \u201cnecessary in a democratic society\u201d.<\/p>\n (iii) Necessary in a democratic society<\/p>\n 45. Regarding the applicant\u2019s case, the Court notes that in 2016 the applicant had agreed that his and A.B.\u2019s son was to reside with the child\u2019s mother (see paragraphs 7 and 8 above). It also appears that the applicant\u2019s claim concerning that residence agreement was brought about by the circumstances that, because of the parents\u2019 ongoing conflict and hostility, the contact arrangement, which had been previously approved by the court on the basis of the applicant and A.B.\u2019s friendly settlement agreement, had not been complied with (see paragraphs 8 and 14 above).<\/p>\n 46. Be that as it may, on the basis of the materials in its possession, the Court finds that the Lithuanian courts had reached reasoned decisions for why the child was to remain living with his mother. Those decisions were based on the findings by the forensic experts, who had examined the child and the family situation, and referred to the conflict of loyalties from which the child suffered (see paragraphs\u00a011 and 22 above). Notwithstanding deficient behaviour on the part of the child\u2019s mother, the fact remained that the child was closely attached to her and had never lived apart from her. It was unclear how the child\u2019s psychological state would be affected should he be separated from his mother. As for the applicant, there remained uncertainty as to where the child would live should he be transferred to his father\u2019s custody. The applicant had himself confirmed in court that he had not been ready for the child to live with him (see paragraph\u00a022 above). It is worth noting that in reaching their decisions, the Lithuanian courts correctly referred to the Court\u2019s case-law (ibid.).<\/p>\n 47. The Court has also consistently held that, whilst Article\u00a08 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by that provision (see Buscemi v. Italy, no.\u00a029569\/95, \u00a7\u00a058, ECHR 1999-VI, and Elsholz, cited above, \u00a7\u00a052). In the instant case, the Court notes that the applicant, in person or through his lawyer, was present at a number of hearings where the protective measures and the merits of A.B.\u2019s civil claim and the applicant\u2019s counterclaims were considered by the Kaunas City District Court and the Kaunas Regional Court (see paragraphs 12, 14, 21 and 22 above). Thus, he had the opportunity to submit requests and evidence, present his arguments and comment on the other participants\u2019 submissions before the courts, both in writing and orally, and he also had the right to appeal. That being the case, the Court cannot but conclude that the applicant was thus placed in a position enabling him to put forward all of his arguments to support his claims \u2013 both as regards the residence and the contact rights, and he also had access to all relevant information relied on by the courts (see, mutatis mutandis, G.B. v. Lithuania, cited above, \u00a7\u00a0105).<\/p>\n 48. The Court has already had occasion to note that, should the circumstances change, a parent retains the possibility of applying to court so that the residence order can be changed (see Z.J. v. Lithuania, cited above, \u00a7\u00a0105).<\/p>\n (c) As to the issue of contact<\/p>\n 49. The Court considers that the authorities, faced with the tense relationship between the parents, had a difficult task. Both the applicant and his former wife continued to submit a number of claims and counterclaims against each other (see paragraphs 10 and 14 above). The child\u2019s mother even sought the involvement of the police, accusing the applicant of not returning the child in a timely fashion, despite the fact that this was obviously unnecessary (see paragraphs\u00a023 and 26 above). The parents\u2019 behaviour was therefore far from constructive, this fact being acknowledged by the authorities, namely the psychologists and the courts (see paragraphs\u00a017, 18in fine, 23 and 24 above).<\/p>\n 50. Notwithstanding this fact, the Court has had occasion to hold that lack of cooperation between separated parents is not a factor which can by itself exempt the authorities from their positive obligations under Article\u00a08. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child which, depending on their nature and seriousness, may override those of the parent (see Diamante and Pelliccioni v. San Marino, no.\u00a032250\/08, \u00a7\u00a0176, 27\u00a0September 2011).<\/p>\n 51. In the instant case, the Court finds that the Lithuanian authorities\u2019 obligation to provide assistance in these highly conflictual proceedings was fulfilled. In fact, childcare authorities, court-appointed psychologists and the domestic courts alerted and warned both parents a number of times that their own anxieties and interests should not triumph over the interests of the child (see paragraphs\u00a011, 13, 17, 18, 23 and 24above). The court-appointed psychologist saw and examined the child, and later the services of a psychologist were placed at the applicant\u2019s disposal; that psychologist had been actively involved in the attempts for the applicant to be in contact with his son (see paragraphs 11and 20 above). The psychologist\u2019s subsequent conclusion that physical force was not a measure to be used in a situation where the child would not wish to go with his father is tantamount to the Court\u2019s position that any obligation to apply coercion to facilitate the reunion of a parent and children must be limited (see Hokkanen v. Finland, 23\u00a0September 1994, \u00a7\u00a058, Series A no.\u00a0299\u2011A, and Z.J. v. Lithuania, cited above, \u00a7\u00a098, with further references). The court also instructed a psychologist to mediate during the child\u2019s transfer to the applicant from A.B., yet in the face of A.B.\u2019s uncooperative behaviour, the psychologists were powerless (see paragraphs\u00a020 and 24above). The childcare authorities likewise regularly assisted the courts and the applicant by answering the applicant\u2019s queries, and making suggestions about how to enforce the court orders for contact between the applicant and his son; they had assisted the child\u2019s mother by explaining to her how to behave with the child; similarly, those authorities had not objected to the child\u2019s residence with the father for a one-month period (see paragraphs\u00a012, 14, 19 and 24above; contrast Ignaccolo-Zenide v. Romania, no.\u00a031679\/96, \u00a7\u00a0112, ECHR 2000\u2011I). In fact, the applicant himself acknowledged that the childcare authorities had supported his side of the dispute in court (see paragraph\u00a036 above). As for the courts, they showed sensitivity to the applicant\u2019s situation by rejecting A.B.\u2019s claims for the restriction of the applicant\u2019s contact with his son on the pretence that it would be damaging to the child, and instead urged A.B. not only to refrain from obstructing that contact but also to actively foster it (see paragraph 13 above). Likewise, the courts emphasised the need for contactwhich was direct and undisturbed by the child\u2019s mother, and essentially granted all the requests by the applicant inasmuch as the modalities of his contact with the child were concerned, and also ordered that the child\u2019s transfer was to take place in a neutral environment, which was much more beneficial for the child\u2019s meetings with his father (see paragraphs\u00a012, 13 and 16 above).<\/p>\n 52. On the facts, the Court acknowledges that despite the applicant\u2019s over one hundred visits to Lithuania, his contact with the child had been very limited (see paragraphs\u00a024 and 26 above). While finding this fact regretful, the Court notes that de jure at no stage of the court proceedings was the applicant prohibited from being in contact with his son (see Elsholz, cited above, \u00a7\u00a049, and Kutzner v.\u00a0Germany, no.\u00a046544\/99, \u00a7\u00a067, ECHR 2002-I). Lastly, and although this may be of little comfort to the applicant, on the application by a bailiff, A.B. was fined twice for failure to comply with the contact order (see paragraphs\u00a09 and 18 above). The State thus did not remain a passive bystander.<\/p>\n 53. In the light of the foregoing, the Court finds that, on the facts of the case, the Lithuanian authorities may not be reproached for having failed to perform their duty to assist the applicant, notwithstanding A.B.\u2019s lack of cooperation. The Government\u2019s objection as to the applicant\u2019s failure to exhaust domestic remedies (see paragraph\u00a031 above) must therefore be dismissed.<\/p>\n (d) Conclusion<\/p>\n 54. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 8 of the Convention.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY<\/strong><\/p>\n 1. Decides to join to the merits the preliminary objection concerning the exhaustion of domestic remedies and dismisses it;<\/p>\n 2. Declares the application admissible;<\/p>\n 3. Holds that there has been no violation of Article\u00a08 of the Convention.<\/p>\n Done in English, and notified in writing on 22 November 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Jon Fridrik Kj\u00f8lbro
\nCASE OF BA\u0160KYS v. LITHUANIA<\/strong>
\n(Application no. 47410\/20)<\/em>
\nJUDGMENT<\/p>\n
\n22 November 2022<\/p>\n
\nJon Fridrik Kj\u00f8lbro, President,
\nCarlo Ranzoni,
\nEgidijus K\u016bris,
\nBranko Lubarda,
\nGilberto Felici,
\nSaadet Y\u00fcksel,
\nDiana S\u00e2rcu, judges,
\nand Hasan Bak\u0131rc\u0131, Section Registrar,<\/p>\n
\nthe parties\u2019 observations;
\nHaving deliberated in private on 18 October 2022,<\/p>\n
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n