FIFTH SECTION
CASE OF E.K. v. LATVIA
(Application no. 25942/20)
 
 
 
JUDGMENT
 
Art 8 • Positive obligations • Family life • Failure of domestic authorities to take necessary and timely steps to enforce the applicants’ contact rights with his daughter seeking to overcome the mother’s obstructive attitude and reconciling the parties’ conflicting interests
 
STRASBOURG
13 April 2023
 
FINAL
 
13/07/2023
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of E.K. v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Lado Chanturia,
 María Elósegui,
 Mattias Guyomar,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 25942/20) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr E. K. (“the applicant”), on 25 June 2020;
the decision to give notice to the Latvian Government (“the Government”) of the application;
the parties’ observations;
the decision to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court ex proprio motu;
Having deliberated in private on 21 March 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a complaint about non-enforcement of a judgment granting the applicant contact rights with his daughter, allegedly in breach of his right to respect for his family life guaranteed under Article 8 of the Convention. THE FACTS
2. The applicant was born in 1983 and lives in Saldus County. He was represented by Ms I. Nikuļceva, a lawyer practising in Riga. 3. The Government were represented by their Agent, Ms K. Līce. 4. The facts of the case may be summarised as follows. Proceedings setting out contact arrangements
5. The applicant was married to I.B. Their daughter D.K. was born on 6 August 2013. In October 2016 I.B. moved out of the family home and took up residence in a town more than 200 km away, taking D.K. with her. On 10 January 2017 I.B. filed for divorce. 6. On 10 May 2017 a guardianship and curatorship institution established by Cēsis Municipality (Cēsu novada bāriņtiesa – hereinafter “the Guardianship Institution”) held a meeting during which the applicant met D.K. The minutes of the meeting state that D.K. approached the applicant with genuine surprise and joy and started showing him her drawings. She showed positive emotions and was talking to him a lot, she was sitting on his lap and cuddling him, and she did not want him to leave at the end of the meeting. 7. On 22 May 2017, within the divorce proceedings, the Cēsis District Court adopted an interim order determining the applicant’s contact rights with D.K., allowing him unsupervised contact every other Saturday from 11 a.m. to 6 p.m., except for nap times, during which she was supposed to sleep at home. On 17 July 2017 the Vidzeme Regional Court changed the contact sessions to every other Friday from 8.30 a.m. to 1 p.m., to be commenced at the preschool, in view of reports from the applicant and the Guardianship Institution that I.B. was placing obstacles to the exercise of contact rights. After that, I.B. removed D.K. from the preschool and began homeschooling. 8. On 5 March 2018 the Vidzeme District Court dissolved the marriage and determined the applicant’s contact rights. The parents retained shared parental authority, and the applicant was granted the right to meet D.K. alone every other Saturday from 11 a.m. to 6 p.m., except for nap times, by picking her up at a car park near her home. It also provided for a gradual increase of the contact sessions starting from the age of six, which included weekend overnight stays at the father’s home and shared public and other holidays. The court noted that since 17 July 2017, when the Vidzeme Regional Court had changed the interim order regarding contact rights (see paragraph 7 above), the applicant had been unable to exercise those rights as set out in the order. The court concluded that I.B. had been trying to place obstacles to the applicant’s contact with his daughter and noted that the parties were unable to resolve their conflicts without the involvement of the competent institutions. The judgment was appealed against with respect to the applicant’s contact rights. 9. On 5 June 2018 the Vidzeme Regional Court, in its appeal judgment, approved a similar contact order indicating that the applicant had to pick up D.K. at the car park near her home, but that the gradual increase of contact including weekend sleepovers at the father’s home would instead commence at the age of five (hereinafter “the Judgment”) (see paragraph 10 below). The court did not hear the views of D.K. directly, but assessed her best interests and referred to several psychological assessments and Guardianship Institution assessments prepared following meetings with the applicant, D.K. and I.B. indicating that there was a conflict between the parents which negatively affected their ability to communicate productively, and that contact was being exercised through conflicts. While the child expressed her emotions to the parents equally, equally sought their contact and expressed joy, I.B.’s negative attitude towards the applicant and the fact that the child lived with her could create or enhance the child’s ambivalent attitude towards the father. The ongoing conflicts negatively affected the child, who was becoming a victim of emotional violence. The parents were unable to resolve their conflict by themselves and both had to take responsibility for the situation. 10. The Vidzeme Regional Court determined the applicant’s contact rights with D.K. as follows:
(1)  until the age of five, the applicant could meet his daughter every other Saturday from 10 a.m. to 7 p.m., except for nap time from 1 to 3 p.m., which would take place at her home (to be postponed to the following Saturday in case of illness);
(2)  from the age of five - every third week, from 10 a.m. on Saturday to 7 p.m. on Sunday (to be postponed to the following week in case of illness);
(3)  from the age of seven - every other week, from 10 a.m. on Saturday to 7.p.m. on Sunday (to be postponed to the following week in the case of illness);
(4)  as of 1 January 2019 - two weeks in summer, when the applicant had summer holidays, and, after D.K. started school, half of her school holidays;
(5)  from the age of five - every even-numbered year, the Christmas and Midsummer holidays, from 10 a.m. on the first day of the holidays to 7 p.m. on the last day of the holidays;
(6)  from the age of five - every odd-numbered year, New Year’s Eve, New Year’s Day and the Easter holidays, from 10 a.m. on the first day of holidays to 7 p.m. on the last day of the holidays;
(7)  the applicant could contact D.K. on I.B.’s telephone every Thursday from 8 to 8.30 p.m., as well as on D.K.’s birthday and name day;
(8)  I.B. had to provide monthly information to the applicant about D.K.’s development, health, progress at school, interests and living conditions at home (by e-mail);
(9)  the contact rights had to be exercised taking into account the child’s opinion and best interests; and
(10)  the parties, if they agreed, could make other arrangements for the exercise of the applicant’s contact rights. The court warned the parties that failure to comply with the Judgment could result in a fine, suspension or removal of parental authority, and criminal liability for malicious failure to comply with a judgment. The Judgment took effect on 15 November 2018 following a refusal to institute proceedings on points of law. Initial attempts to exercise contact rights
11. During the divorce proceedings, the contact sessions primarily took place in I.B.’s home in her presence and sometimes also in the presence of the maternal grandparents. The environment was confrontational, and D.K. frequently expressed unwillingness to see the applicant. 12. Following the entry in force of the Judgment, D.K. was said to be ill for multiple sessions, and the applicant was not allowed to see her (8, 15, 22 and 29 December 2018, and 12 and 19 January, 2 and 9 February, 4 May and 15 June 2019). As of 5 January 2019, D.K. was taken to the meeting place – located only some 100 metres from I.B.’s home – in a car seated between several other people (lawyers, maternal relatives, other adults) and those sessions would routinely not result in any actual contact, as D.K. would state that she did not want to meet the applicant and would be immediately driven away (5 and 26 January, 16 and 23 March, 13 April, and 11 and 25 May 2019). At times, D.K. was accompanied to the meeting place on foot by I.B. but was later driven away in a car by her maternal grandfather (22 June 2019). On other occasions, D.K. ran away or refused to go with the applicant (6 July, 17, 21 and 24 August, and 7 September 2019). Sometimes, I.B. would inform the applicant that D.K. would not be coming to the meeting place, without giving a specific reason (16 and 23 February, 1, 8 and 30 March, and 19 April 2019). The applicant’s contact with his daughter by telephone was also frequently limited or not ensured, including missed calls on D.K.’s birthday. 13. On 16 October 2018 the applicant requested the Guardianship Institution to suspend I.B.’s parental authority owing to her failure to comply with the interim order setting out his contact rights (see paragraphs 7 and 8 above). These proceedings were eventually terminated on 15 October 2019 after the applicant withdrew his complaint, as he and I.B., under the auspices of the Guardianship Institution, had reached an agreement (see paragraph 16 below). During these proceedings, the Guardianship Institution referred I.B., D.K. and the applicant to a psychologist for consultations and resolved some specific issues the parents had been unable to agree upon, such as the choice of general practitioner and the question of whether D.K. should start attending primary school a year early. It also drew up several family assessments indicating that D.K. manifested inexplicable behaviour, such as hitting and biting her father and calling him names, to which the mother did not react, and concluded that the parental conflict had caused emotional damage to the child. It considered that I.B. lacked the understanding that the child needed contact with the other parent and that she had to facilitate contact with the parent living separately by preparing her daughter for the meetings. I.B. was acting incomprehensibly by continuously taking D.K. to see various mental health specialists without ensuring systematic care, and she was not cooperating with the Guardianship Institution. 14. During this time, D.K. was assessed by several specialists. On 2 November 2018 neurologist B.T. found that D.K. had neurotic reactions, neurotic dysuria and cerebro-asthenic syndrome, and it was recommended that she have an emotionally stable environment. On 28 January 2019 psychologist N.R., following two sessions, concluded that D.K. had situational anxiety and neurotic manifestations depending on the topic, particularly in relation to the father, which were caused by the conflicting environment and family circumstances. On 21 March 2019 psychologist I.T., after two sessions of sand therapy, advised I.B. to teach D.K. social boundaries and to learn how to direct the child’s emotions in a positive manner. On 4 March 2019 child neurologist I.C., following three sessions, reported that D.K. needed stability and regular sessions with a psychologist, and that the child could not be forced to have contact, it had to be created in a positive environment. The current situation in which the child felt endangered created a risk of developing a psychological pathology. On 20 May 2019 general practitioner D.G. attested that D.K. was in reasonably good health and did not require specialist consultations. On 6 August 2019 D.K. commenced consultations with psychologist G.T., who, following five sessions, stopped seeing her because the parents were “unable to stop their war in which there [would] be no winners”. 15. The applicant was able to have some contact with his daughter on a couple of occasions but it was significantly limited, having taken place in I.B.’s presence and mostly at her home (27 July and 10 August 2019). 16. On 15 October 2019 the applicant and I.B. reached an agreement whereby the applicant would gradually start to exercise contact rights with D.K. in accordance with the Judgment. I.B. initially complied with that agreement and the applicant was able to meet his daughter on a couple of occasions. However, soon after she started obstructing contact (see paragraph 22 below). Enforcement attempts through a bailiff
17. On 26 November 2018 the Vidzeme Regional Court issued an enforcement order with respect to the Judgment, and on 16 January 2019 the applicant applied to a bailiff for its enforcement. 18. The bailiff sent a notification to I.B. regarding her obligation to comply with the Judgment, in respect of which she filed a complaint. The bailiff subsequently suspended the enforcement proceedings until a court decision was made. On 10 May 2019 the Vidzeme Regional Court dismissed the complaint, noting that there were no doubts that I.B. had not complied with the Judgment (reference was made to the events of 5 January 2019, see paragraph 12 above), as she had not ensured that D.K. would stay with her father and had not emotionally prepared her. A five-year-old child’s openly negative attitude towards the father could not be regarded as an objective ground for not complying with the Judgment. That decision was upheld on appeal on 26 June 2019. 19. In July 2019 the bailiff resumed the enforcement proceedings and sent I.B. more notifications regarding her obligation to comply with the Judgment. On 6 July, 17, 21 and 24 August and 7 September 2019 the bailiff drew up five reports concerning I.B.’s failure to comply with the Judgment on those dates (see paragraph 12 above), indicating that while D.K. had been taken to the place specified, she had refused to approach the applicant and had been running away. The reports stated that I.B. had failed to ensure that D.K. would be handed over. On 30 September 2019 the Vidzeme District Court dismissed I.B.’s complaint about the first of those reports, concluding that she had not handed over the child and ensured the applicant’s contact with her. Moreover, I.B. had not submitted evidence or provided any explanation as to the obstacles preventing the exercise of contact rights. The child’s dismissive attitude could not be regarded as an obstacle, as there was no evidence showing that it had an objective basis and was not correlated with I.B.’s own conduct or influence. 20. On 20 December 2019 the Vidzeme Regional Court annulled that decision. It concluded that the bailiff had a duty to determine “whether a judgment determining contact rights was being complied with and not whether its enforcement was being ensured”. The Civil Procedure Law clearly provided that the bailiff could only draw up a report on failure to comply with the judgment if the child was not present at the time and place specified. I.B. had taken the child to the place specified at the relevant time but contact rights had not been exercised because the child herself had refused to go with the father. The child could not be forced to comply with the Judgment against her will, which could amount to violence against the child. The bailiff was not competent to resolve the conflict about whether the mother was responsible for influencing the child’s opinion. Failure to comply with the judgment had to be distinguished from circumstances encumbering enforcement, and in the latter case recourse had to be had to the mechanism for reviewing the arrangements for the exercise of contact rights under the Civil Procedure Law (see paragraph 51 below). Only in those proceedings, or in new proceedings concerning contact rights, would the court analyse the reasons for the child’s opinion and evaluate the circumstances connected with the exercise of the parent’s rights and obligations. Subsequently, on 10 January 2020 the other bailiff’s reports were annulled on the same grounds. 21. On 9 October 2019 the State Inspectorate for the Protection of Children’s Rights (Valsts bērnu tiesību aizsardzības inspekcija) expressed a similar opinion stating that neither the bailiff in the enforcement proceedings nor the court when reviewing the bailiff’s actions could resolve a situation where a child did not want to go with a parent or assess such a complex and important issue as the reasons for this refusal. The appropriate mechanism was seeking a review of the contact arrangements and requesting that the sessions be organised in the presence of a contact person. In addition, the Guardianship Institution had the competence to assess whether or not parental authority was being exercised maliciously and to decide on the suspension of parental authority, if appropriate. 22. Between September 2019 and January 2020, while the appeals against the decisions of the Vidzeme District Court were pending (see paragraphs 19-20 above), the scheduled contact sessions took place in I.B.’s presence, mostly in her home and sometimes in the presence of the maternal grandmother (28 September, 5 and 19 October, 2, 9, 16, 23 and 30 November, 7, 14, 21 and 28 December 2019, and 4 January 2020). On 24 and 30 December 2019 I.B. refused to take D.K. to sessions scheduled in Saldus, claiming that the child was ill. On 11 January 2020 D.K. was taken to Saldus together with a bailiff and I.B.’s sister. D.K. stated that she did not want to meet the applicant and was immediately taken away. On 18 January 2020 a contact session took place in I.B.’s home in a heated atmosphere. From then on, I.B. either did not take D.K. to the place specified, claiming that she was ill (25 January and 20 March 2020), or took her to the meeting place in a car, immediately driving away without anyone getting out (1 February 2020). On 22 February 2020 the applicant’s car had a technical problem, so he could not attend a contact session scheduled to take place in Cēsis. The applicant’s contact with his daughter by telephone was also frequently limited or not ensured. 23. On 11 March 2020 the applicant had contact with D.K. in her home, but I.B. did not allow him to stay longer than thirty minutes, claiming that D.K. was ill. There is no information about subsequent contact sessions between the applicant and D.K. On 28 March 2020 a scheduled session was postponed owing to the Covid-19 pandemic. On 16 May 2020 another session did not take place as I.B. took D.K. to the meeting place by car, but immediately drove away without anyone getting out. 24. On 5 September 2020 a contact session was organised at the premises of the Guardianship Institution (see paragraph 26 below) in the presence of a bailiff. After the session, the bailiff reported that I.B. and D.K. had arrived at the time and place specified but D.K. had shouted and refused to enter the room, after which I.B. and D.K. had left. When the bailiff had called I.B., she had responded that they would not be returning to the Guardianship Institution as she was unable to calm her daughter down. The bailiff concluded that the situation could not be classified as failure to comply with the Judgment, as the child could not be forced to have contact against her will. The bailiff had no legal grounds to assess the reasons for the child’s refusal to meet the father, as the law did not provide that the bailiff could carry out a thorough assessment of the circumstances if the child was present at the time and place specified. The institutions responsible had to assess the family situation and find the solution most suitable for the child. The Guardianship Institution had to assess whether either of the parents were using their parental authority maliciously. Accordingly, in this situation, there were circumstances encumbering enforcement of the Judgment, and the enforcement order had to be returned to the applicant so that he could ask the court to review the arrangements for exercising contact rights. The bailiff’s decision to return the enforcement order to the applicant was upheld by the Vidzeme District Court on 10 November 2020 and by the Vidzeme Regional Court on 2 January 2021, noting that the applicant had the right to request a review of the arrangements for the exercise of contact rights. Requests to review the arrangements for the exercise of contact rights
25. On 4 April 2019 the applicant requested the Vidzeme Regional Court to review the arrangements for the exercise of contact rights set out in the Judgment. He asked the court to impose specific obligations on I.B. with a view to convincing D.K. to go with him during the contact sessions, allowing I.B. and D.K. to leave the contact place only if these attempts had been unsuccessful for three hours, as well as imposing an obligation on I.B. to attend psychological support sessions. On 16 May 2019 the Vidzeme Regional Court, following a written procedure, acknowledged that the Judgment was not being enforced and that the applicant had had no real possibility of meeting and communicating with his daughter. While the court considered the claim that I.B. was unlawfully preventing contact unproven for lack of evidence, noting that the applicant’s requests to institute criminal proceedings against I.B. had been refused, it concluded that she was not doing everything in her power to facilitate the successful exercise of contact – she had not taken any active steps in that regard. The court added that the mother had to prepare the child emotionally for contact sessions in order not to create additional stress. The court granted the applicant’s request with respect to the wording in the contact order requiring D.K. to be “handed over” by I.B. rather than her being “picked up” by the applicant “as in that manner the child’s mother [I.B.] would possibly be expected to take more active steps to facilitate the exercise of [the applicant’s] contact with his daughter [D.K.]”, imposing the requirement for I.B. to take D.K. to the contact place without third parties being present, and – with respect to weekly telephone calls – that I.B. had to ensure that the applicant could make video calls via WhatsApp. It also clarified the arrangements to be made when D.K. was ill, including the applicant’s right to have contact with her on those occasions for thirty minutes at her home. The Vidzeme Regional Court dismissed the request to impose an obligation on I.B. to attend psychological support sessions owing to the fact that she was employed and such an obligation could lead to complications with her employer and create new conflicts, while also noting that such sessions should be considered by the parties in order to ensure contact. 26. On 8 June 2020 the Vidzeme Regional Court partly granted a new request by the applicant to review the arrangements for the exercise of contact rights. It assessed the best interests of the child and noted that they did not necessary coincide with her views. On the one hand, family ties had to be preserved and relationships restored. On the other hand, it was in the child’s best interests to be in a safe environment and the parents should not harm her health and development. The contact rights had to be made in the child’s best interests. It concluded that the applicant’s contact rights with D.K. were not being carried out in the manner set out in the Judgment since the child had refused to meet the father and that there had to be identifiable reasons for that. Accordingly, it ruled that the contact sessions should be commenced at the premises of the Guardianship Institution in the presence of a contact person designated by it, and that after one hour they should be continued in the manner set out in the Judgment. It was necessary to continue taking steps with a view to stabilising the child’s psychological and emotional state, which – as noted by the Guardianship Institution – was being affected by the child’s mother. The child’s opinion of the applicant would be more positive if not influenced by the mother. The court emphasised that the child’s views were important but that the need to consider her best interests could not be simply reduced to following her wishes. In that regard, the court noted that the role of a contact person – who had to be neutral from both parties involved – was to take active steps with a view to facilitating the exercise of contact. That person had to ensure the presence of an appropriate specialist during the contact sessions. 27. On 28 April 2021 the Guardianship Institution applied to the Vidzeme Regional Court, requesting it to change the arrangements for the exercise of contact rights so that the sessions would be commenced at the office of a psychologist chosen by the parents (they indicated A.S., see paragraph 38 below), rather than at the Guardianship Institution. The Guardianship Institution noted that its representative had acted as the contact person on twenty-three occasions but that contact had never taken place as the child had refused to meet her father or had not gone to the meeting at all. On 27 May 2021 the Vidzeme Regional Court dismissed the request, noting that the psychologist did not wish to be given the status of a contact person, she had preferred that their cooperation be continued on a voluntary basis and not be ordered by the court. Moreover, the duties of a psychologist and a contact person differed. The court held that both parents together with the child should continue using the help provided by a psychologist (and not a contact person). The court also pointed to the Guardianship Institution’s indecisiveness and contradictions in its application and expressed concerns that it was trying to evade its duties under law to participate in the contact sessions in this specific case. The court reminded the Guardianship Institution of its duty to participate in the contact sessions in cases where parents could not agree on a contact person to be designated (see paragraph 50 in fine below). The Guardianship Institution could not relieve itself of this duty. Attempts to exercise contact rights through the involvement of the Guardianship institution
28. In view of the applicant’s complaint that I.B.’s actions were preventing the exercise of his contact rights, the Guardianship Institution carried out an assessment of the family situation from 16 to 27 January 2020. The conclusions were largely the same as during the previous assessments (see paragraph 13 above). I.B. was instructed to remove the obstacles to her daughter’s development by 27 March 2020. In an assessment carried out from 1 May to 8 June 2020, the same conclusions were reached again. The Guardianship Institution found that I.B. had not provided the applicant with the possibility of meeting his daughter without other people being present and that she had not agreed to go for walks or events outside of the house. During the contact sessions, she had not encouraged improvement of the relationship and had continued to take no action to facilitate contact. I.B. had also provided insufficient information concerning the child’s health, education, development and pastimes to the applicant. I.B. had not complied with the previous agreement reached at the Guardianship Institution concerning gradual enforcement of the Judgment (see paragraph 13 above). 29. After the court’s order that the contact sessions be coordinated by the Guardianship Institution (see paragraph 26 above), the latter designated a contact person and from June 2020 to January 2021 organised at least twenty-three sessions at its premises, including the session of 5 September 2020 (see paragraph 24 above). It reported that none of those sessions had resulted in any actual contact, as I.B. would either announce that the child did not want to meet the applicant and would either not attend or would take the child to the meeting place only to immediately take her away after the child announced that she did not want to meet the applicant. 30. On 5 and 14 October 2020 respectively the Guardianship Institution and I.B. filed an application seeking to suspend enforcement of the Judgment while the proceedings to change the applicant’s contact rights (see paragraph 44 below) were pending before the civil courts. On 4 November 2020 the Vidzeme Regional Court dismissed the request. 31. On 12 October 2020 the Guardianship Institution addressed the State Inspectorate for the Protection of Children’s Rights for an explanation as to the role and obligations of a contact person. The Inspectorate forwarded this enquiry to the Ministry of Welfare, which responded that the obligations differed from case to case and that, in the particular circumstances of the case at hand, the obligations had to be determined in accordance with the reasons laid out in the Judgment. The Inspectorate also provided a response of its own, stating that in situations where the child was dismissive, the contact person’s duty was to get involved and propose specific activities to facilitate contact. In order to avoid potential conflicts of interest and dissatisfaction of the parents, only in cases of absolute necessity should the Guardianship Institution’s employee fulfil the role of a contact person, the most appropriate person being a psychologist with specialist knowledge. The Inspectorate advised the Guardianship Institution to address the Vidzeme Regional Court for an explanation of the Judgment. 32. On 28 December 2020 the Guardianship Institution provided its assessment of the family situation in the civil proceedings lodged by I.B. (see paragraph 44 below). It noted that while D.K. had been in her mother’s care, the specialists’ recommendations had not been complied with, there was no indication that D.K. received regular psychologist consultations, and the help of a mediator or a psychotherapist was not being used. I.B. was not cooperating with the Guardianship Institution or the specialists, she had ignored the family doctor’s advice and was sending D.K. to an incomprehensible number of specialists. The father’s contact rights were not being ensured owing to the parental conflicts. The Guardianship Institution considered that there would be no conflicts if the father could exercise his contact rights at least partially. The child was being influenced by the mother’s attitude and mood. The longer contact rights were not being exercised, the less objective the child’s opinion became. I.B.’s conduct indicated that, according to her, meeting the father was not in D.K.’s interests, and that she was satisfied with the fact that D.K. refused to meet her father. The child was not being prepared for the meetings and contact was not being facilitated, which was not compatible with the best interests of the child. The applicant had requested the Guardianship Institution to ensure his contact rights as provided for by the Judgment, but it had no competence to control enforcement of the Judgment. It had taken all the action required of it by law – the parents had been informed of the need to comply with specialists’ recommendations and create a positive attitude in the child with respect to the contact sessions. Proceedings to suspend I.B.’s parental authority
33. On 15 January 2020 the applicant repeatedly requested the Guardianship Institution to suspend I.B.’s parental authority on account of her failure to comply with the Judgment (see paragraph 13 as regards his previous request). On 5 March 2020 I.B. filed a similar request with respect to the applicant, citing his insistence on meeting his daughter. Within those proceedings, the Guardianship Institution sought to hear the views of D.K. During the first meeting in January 2019, they noted that D.K. was a well-developed, open, and friendly child, but that she also sought undivided attention. I.B. was seen as attempting to control what D.K. said. The child’s views had to be heard without others present, however, I.B. did not cooperate in this regard and did not let the Guardianship Institution meet D.K. without her present. In the second meeting, in June 2020, D.K. refused to talk to the representatives of the Guardianship Institution and only said that she refused to meet her father. On 11 June 2020 the Guardianship Institution dismissed the requests with respect to both parents. It concluded that the situation had not changed since 7 August 2017 and that the ongoing parental conflict was emotionally harmful to the child. With respect to the applicant, the Guardianship Institution noted that there were no indications that he had abused his parental authority. As to I.B., the Guardianship Institution concluded that she was not exercising shared parental custody, as she was taking all decisions unilaterally; she was also not facilitating enforcement of the Judgment, citing the child’s unwillingness to meet the father as a pretext. Her conduct demonstrated her resistance to the father meeting their daughter, and she was trying to prevent their contact. I.B. was speaking negatively about the father in the presence of their daughter and blaming him for unpleasant situations. A couple of years earlier, the daughter had been happy to meet the father but now refused to meet him and go with him. However, this negative attitude in itself did not demonstrate that it had been created by the mother alone, as it could have also been caused by the parental conflicts and the child’s observations. At the same time, I.B.’s conduct in unnecessarily subjecting D.K. to treatment by many different specialists in an attempt to obtain a conclusion that would serve her interests was traumatising the child. The Guardianship Institution concluded that I.B. was using her parental authority maliciously by not complying with the Judgment. However, the harm that would be caused by suspension of her parental authority and the child’s separation from her would be even greater. Accordingly, the Guardianship institution ruled against the suspension of parental authority and advised the parents to set their conflicts aside to find a solution in the child’s interests. Both parents appealed against that decision. 34. On 1 July 2020 the applicant addressed the Guardianship Institution to ask what he was supposed to do to exercise his contact rights and what it intended to do to facilitate contact. On 22 July 2020 the Guardianship Institution responded that the question concerned enforcement of a judgment in a civil case. Contact rights were determined by a court, not a guardianship institution, and if the applicant considered that the Judgment was not being enforced, he could have recourse to a bailiff. Criminal liability was also envisaged for failure to comply with a contact order, and any disputes on contact rights could also be brought before arbitration tribunals or mediators. The Guardianship Institution invited the applicant and I.B. to resort to conflict resolution methods that ensured the best interests of the child. In view of the court order (see paragraph 26 above), the Guardianship Institution had provided safe premises and appointed a contact person. 35. On 30 December 2020 the Administrative District Court allowed the applicant’s complaint and ordered the Guardianship Institution to suspend I.B.’s parental authority. It noted that I.B. had already been placing obstacles to the exercise of the applicant’s contact rights during the divorce proceedings, and that the Judgment had never been complied with, as I.B. had not facilitated but had instead hampered the applicant’s contact with their daughter. In January 2020, when the applicant had sought the suspension of I.B.’s parental authority, the Guardianship Institution had already been well aware of the family history, including I.B.’s failure to ensure the applicant’s contact with his daughter. It had itself identified the risks, including I.B.’s attempts to evade enforcement of the Judgment, and had therefore been obliged to act with greater urgency. The longer the child did not meet one of the parents, the more her opinion could be influenced by the parent with whom the child lived. Prolonged failure to comply with the Judgment created an unjustified advantage for the parent who unlawfully failed to comply with it. Currently, even though it was recognised that contact rights were not being ensured, none of the institutions involved were capable of ensuring them. 36. The Administrative District Court further considered that the daughter’s unwillingness to meet the applicant was not a conscientious opinion of the child and that invoking it for failure to comply with the Judgment would not ensure the child’s best interests. The child’s opinion had been influenced by I.B. She had always stayed with her daughter during the contact sessions, thereby increasing the tension and not allowing the father and daughter to meet alone. The child had already evidently been traumatised by this situation. It had also not been explained why the child had been continuously taken to see various specialists, rather than one who would prepare her for contact with the father, while also working with the mother. I.B.’s conduct demonstrated that she was trying to have it recognised that meeting the father would not be in the child’s interests, and that she was content with a situation in which the child was refusing to meet the father. In view of the evidence before it, the court concluded that I.B. had consciously created fear in her daughter’s mind of her father. 37. The Administrative District Court also noted that I.B. was not heeding the advice of the specialists and was not cooperating with the Guardianship Institution. She had not allowed the latter’s representatives to speak to the child alone, instead participating in the meeting together with the lawyer and trying to control what the child was saying. As I.B. was purposefully trying to influence the child’s opinion and prevent any meetings between the father and child, her behaviour was not compatible with the child’s best interests and constituted abuse of her parental authority. Such a situation had already caused and kept causing harm to the child, which was grounds for suspending I.B.’s parental authority. Both I.B. and the Guardianship Institution appealed against that judgment. 38. While the appeal was pending, the parents, by mutual agreement, started attending couples therapy and to see a mediator and a psychologist, either separately or together with D.K. Between 9 January and 3 April 2021 six sessions took place. After two of those sessions, the applicant, I.B. and D.K. spend some time together outside the therapy setting. On 6 April 2021 the psychologist, A.S., reported that the parents had agreed on contact at her office every other Saturday. Both parties were currently cooperating, even though I.B. and the applicant had difficulties trusting each other. Owing to the ongoing psychological tension between the parents, D.K. had difficulty controlling her emotions and there were anger outbursts and behavioural problems (such as shouting, physically attacking the father, tearing up the worksheet). The current difficulties included the father’s lack of knowledge and skills in establishing contact, the mother’s inability to motivate the daughter to communicate with the father and D.K.’ s difficulty in complying with the rules and respecting other people’s boundaries. 39. On 13 July 2021 the Administrative Regional Court reversed the Administrative District Court’s judgment and dismissed the applicant’s request seeking suspension of I.B.’s parental authority. It agreed that I.B. was not exercising joint parental custody, that she was taking the most important decisions concerning the child alone (e.g. concerning preschool, schooling and various specialist appointments), that the applicant could not exercise his contact rights, and that I.B. was not motivating the child or facilitating contact. However, transferring D.K. to the care of the parent whom she did not want to meet would cause greater harm than I.B.’s refusal to ensure the applicant’s contact rights. D.K. did not accept any contact with her father and forcing her to have such contact would subject her to a psychologically traumatising situation. The court also found that both parents were at fault for the situation hampering the child’s contact with the father, as D.K. did not want to meet the applicant owing to the bad relationship between the parents. The court also referred to the progress made since the adoption of the first-instance court’s judgment. The real dispute in the case concerned contact rights, which had to be resolved through civil proceedings. The judgment was upheld on 29 December 2021 by the Senate of the Supreme Court. Further psychological treatment and assessment of D.K. 40. On 19 May 2020 psychologist N.S.P. indicated that D.K. had attended three sessions with her and that she did not want to cooperate because she had seen too many psychologists. N.S.P. concluded that continuing the sessions would serve no purpose. 41. On 4 June 2020 a psychological assessment of D.K. was carried out within the criminal proceedings (see paragraph 46 below). The report stated that during the psychological examination, the child had not been available for productive contact, had acted inappropriately and had not reacted to the remarks made by her mother (she had pretended to be a cat, hissed and growled at the psychologist). Her opinion was subject to the influence of I.B., including with respect to the applicant, in relation to whom the child was unable to formulate her own opinion. D.K. was showing a negative and hostile attitude towards the father and acting inappropriately by shouting, hitting him and calling him names. There was a possibility that I.B. had influenced the child’s opinion. The child was described as intelligent, active and emotional, with tendencies towards provocative behaviour, and in need of boundaries. 42. On 14 July 2020 the applicant suggested that in view of her diagnoses, D.K. should be treated in hospital. On 14 August 2020 psychiatrist I.C. responded to the Guardianship Institution that D.K. should certainly not be treated in a psychiatric hospital, as this would only increase her stress and worsen her condition. The patient had to be treated in a calm environment, with the parents understanding the child’s emotional needs. 43. Between 21 and 29 September 2020, on the basis of a referral by psychiatrist I.C., D.K. was treated in a children’s psychiatric hospital. The diagnosis was acute stress reaction, severe dissociation, enuresis and encopresis (soiling oneself), sleep disorders, nail biting and an atypical parental situation. In the hospital, a psychological assessment concluded that the child’s thoughts and opinions derived from the statements of other people. The child felt threatened and feared that she would be placed in an orphanage. The medical panel concluded that D.K. had neurotic symptoms with emotional and behavioural disturbances and possibly dissociative disorder. When she was discharged, it was recommended that she attend outpatient psychiatric consultations and regular psychologist/psychotherapist consultations. Couples therapy, mediation and family psychotherapy for the parents were indicated as desirable. Other proceedings
44. In December 2018 I.B. instituted civil proceedings seeking different arrangements for the exercise of the applicant’s contact rights than those established by the Judgment (see paragraph 9 above). Her claim was dismissed on 11 June 2021 and was not appealed against. 45. On 17 January 2019 I.B. applied for a restraining order against the applicant on the grounds that he was systematically attempting to exercise his contact rights with D.K. in disregard of the child’s wishes. The following day, the Vidzeme District Court dismissed the request, noting that the applicant’s conduct showed no signs of emotional or psychological abuse and that he was merely trying to restore contact with his daughter. The difficulties in exercising contact rights could only be prevented by a truly supportive attitude from I.B., which, in the current situation, could not be observed. I.B. filed a repeated request, which was dismissed on the same grounds on 6 October 2020. 46. Although initially the applicant’s requests to institute criminal proceedings were refused on numerous occasions, on 7 June 2019 criminal proceedings were instituted against I.B. for malicious failure to comply with the Judgment. On 12 July 2019 she was declared a suspect. On 21 March 2021 the applicant was recognised as a victim in those proceedings. On 16 April 2021 criminal charges were brought against I.B. The Court has received no further information on the progress of those proceedings. 47. On 24 September 2019 the Administrative District Court refused to consider the applicant’s complaint concerning the inaction of the Guardianship Institution in enforcement of its own decision to refer I.B. to a psychologist. On 18 December 2019 that decision was upheld by the Supreme Court. The courts noted that the referral to a psychologist was not an administrative decision, as it did not contain a final settlement of the case, and therefore could not be enforced. It was an interim decision in the proceedings, which would be concluded with a decision on whether to suspend parental authority. Suspension of parental authority was the most extreme measure, and failure to comply with the Guardianship Institution’s decisions would not necessarily lead to it; it would be one of the considerations in the decision-making process. As to the failure to act, the Guardianship Institution had no obligation to supervise enforcement of its decision referring I.B. to a psychologist or organise enforcement of that decision. 48. On 16 March 2021 the Administrative District Court refused to examine the applicant’s application of 12 October 2020 relating to the Guardianship Institution’s failure to act in the protection of the child’s interests following the report of 4 June 2020 (see paragraph 41 above). The court considered that it was not a separate claim but was still directed at the termination of I.B.’s parental authority. As such proceedings were already pending before the administrative courts (see paragraph 35 above), this application was left without examination. The applicant failed to lodge an ancillary complaint against that decision on time and asked for that time-limit to be extended. It was refused by a final decision of 9 June 2021. 49. On 3 March 2021 the Administrative District Court dismissed I.B.’s complaint about the Guardianship Institution’s decision of 11 June 2020 (see paragraph 33 above) in so far as it had refused to suspend the applicant’s parental authority. It noted that the conflict primarily concerned the exercise of contact rights and that the removal of parental authority would not remove those rights. Disputes concerning contact rights had to be resolved in civil proceedings. On 5 April 2021 that decision was upheld by the Administrative Regional Court. RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Civil Law
50. Section 178 of the Civil Law provides that parents who live separately retain shared custody of the child. If the parents are unable to agree on issues that may significantly affect the development of the child, the disputes are resolved by a guardianship institution. Section 182 of the Civil Law provides that in the event of a dispute concerning contact rights, the arrangements for the exercise of contact rights are determined by a court, after obtaining an opinion from the guardianship institution. If necessary, the court may decide that contact rights should be exercised in the presence of a contact person, at a place suggested by the guardianship institution, or may impose an obligation to take the child to the guardianship institution at a specified time. If the parents cannot agree on the contact person or the guardianship institution does not agree with the choice made, contact rights can be exercised in the presence of a representative of the guardianship institution or a person designated by it. A contact person can be a physical or a legal person who has agreed to take on this role. The Civil Procedure Law
51. Section 24413 of the Civil Procedure Law regulates applications arising from inability to enforce a contact order. It provides that if the bailiff concludes that enforcement of a contact order is not possible, the enforcer can ask the court to review the time and place specified for the exercise of contact rights. The court then requests information about the child’s daily routine from the guardianship institution responsible and examines the application to change the time and place of the contact sessions at a hearing. It can also request additional information from the bailiff, particularly with respect to the identified obstacles to enforcement of the order. If the court, either at the request of a party or of its own motion, concludes that contact rights should be exercised in the presence of a contact person, it invites the contact person to take part in the hearing and verifies whether that person agrees to the exercise of contact rights in his or her presence. The decision on reviewing the time and place for the exercise of contact rights should be taken within one month, unless this is impossible owing to exceptional circumstances. If the court concludes that there are circumstances encumbering or rendering enforcement of the contact order impossible, it may set out different arrangements for the exercise of contact rights.

Article of the Convention at issue: Article 8
Outcome: violation