EHRM, 03-09-2015, nr. 10161/13

‘The measure only partly achieved its goal in that the contacts with the mother have stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother's cooperation with the supervising officer is not adequate and it is evident that the measure became futile.’

‘Clinically discrete hematoma of the left eye's lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of the orbit fracture.

Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides.

Dg.: Contusio oc.sin.

Haematoma palp.inf.oc.sin.

Therapy: cold wraps [compresses] … Into the eye: Effludimex sol.

…

Dg:

S05.1. Bruising of the eyeball and the eye socket tissue’

‘This interview was conducted regarding the violent behaviour of the [child's] father I.M.

[The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take the picture frame containing a lock of her hair which her mum had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening.

… In the evening, around 8 p.m., mum brought her to her dad who invited her into the room and called her a thief, hit her with his hand on her left eye and started squeezing her neck and pushing her. In the course of it she fell but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father having squeezed her neck. Then [her father's partner] I.P. came and told her father to calm down otherwise she [the first applicant] would vomit … He then left and sat in the living room. She was very afraid and was crying but nevertheless went to her room and wrote the homework for tomorrow. When she woke up in the morning she greeted her father with ‘good morning’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher, her friends P. and A. because she felt the need to confide in someone.

Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [cursed] her. He often does that, and did so [also] yesterday evening. He also called her a ‘cow’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he will ensure that she never hears from, nor sees her mum. She is therefore very afraid of her dad because he can be dangerous. She saw when her dad was beating her mum and is therefore afraid that he might beat her same way too. She states that her father is often rude to her so that he yells at her, forces her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her with a hairbrush on her leg when she had not allowed him to brush her hair. He also happens to grab her arm and squeeze it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father could beat her and yell at her. He was often threatening her by waiving his hand at her and saying ‘look at it, look at it’ with the intention of hitting her if she would not listen to him. The father had also threatened her that he would cut her hair knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother's partner] N. or his mum, whereas she loves them all.

She further states that each time her mum or [her mother's new partner] N. buy her something and she brings it to her father's home he throws all those things into trash. Therefore, she wears the things her mum bought her only when she comes to her mum's place as she is not allowed to wear them when she is at her dad's home.

Lastly, she states that she is very afraid of her dad and [particularly] … that he does not do something bad to her mum because he constantly threatens to do so.

The interview was conducted in the presence of the social worker of the Zadar Social Welfare Centre V.C.’

‘The interview was conducted in the presence of his advocate B.Z., regarding the report that he had hit his minor daughter … In that connection he stated the following:

…

[He says that his former wife] does not regularly pay maintenance for [their] daughter … amounting to 800 Croatian kunas (HRK) per month and until the present day owes [him] HRK 15,000.

[He submits that], sadly, [his former wife] manipulates their daughter … and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under … the surname of her current partner.

…

As regards his relationship with his daughter …, [he] states that he as a parent who wants to teach his child to respect work and discipline has his duties and that the child has to have certain discipline, [for example] must not lie to her parents, and not do whatever she pleases. When [his daughter] comes back from school … he requires that she does her homework and study. As regards food, [he] states that he wishes that [his daughter] eats healthy and varied food, with fruits and vegetables, rice, meat, and not only that she eats pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten.

On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came to the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket … and asked what it was. [The daughter] replied that it was nothing even though it was visible that she had something underneath. He asked her to open her jacket. [Then they realised] that she had taken the glass picture frame with the locks of her hair cut at the time when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him to take it he would not have allowed it. Then he told her to go to her mum and that they would talk about that later, when she came home.

[The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and bring them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother's place. [He] then reprimanded her for having lied to him by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always does it with measure and with a [good] reason and so exclusively with a view to making her behave [better].

Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] … Nothing suggested that [she] was in any way distressed by the last evening events.

[He] emphasises that all this was fabricated by her mother … who has negative influence on [their daughter].’

‘The interview was conducted regarding the report that I.M. had hit his minor daughter … In that connection she stated the following:

On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came to him and her to the kitchen to say goodbye. On that occasion [I.P.] noticed that she had something under her jacket … and asked her what it was. [Her stepdaughter] replied that it was nothing even though it was visible that she had something underneath. I.M. asked her to open her jacket. [Then they realised] that she had taken the glass picture frame with the locks of her hair cut at the time when she was baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum and that if she had asked him to take it he would not have allowed it. Then he told her to go to her mum and that they would talk about that later, when she came home.

[The stepdaughter] came home at 8 p.m. and [her father and her] continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and bring them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother's place. I.M. then reprimanded for having lied to him by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter] nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something was wrong but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.’

‘The child was with the mother at the police and reported the incident [of 1 February 2011] because the mother, but also the child, claims that this was not the first time that the father is mistreating [the child], although not so much physically as psychologically.

…

During the interview with the girl it is visible that the child gets very upset at the mention of the father, she is afraid of him, ‘constantly thinks that he will hit her again and would like to stay with mum’. Dad is allegedly constantly threatening her that ‘he would cut her hair if she keeps crying and mentioning mum …’ he often curses and utters vulgar expression against the mother which was all allegedly reported to the police … (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks of it all through tears and while biting her fingernails).

…

The girl says that she remembers that ‘she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it’ (she is crying all the time).

The girl otherwise appears having good intellectual capacities, she functions well outside the family, she is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (etc. there is an impression of strong fear of the father).

Given the complexity of the family situation (the father remarried and [the child] lives with him, his new wife, her daughter from the first marriage and two small half-sisters whereas the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which probably lasts already a long time, it would be recommended to obtain psychiatric evaluation of the child.

Until then … I recommend taking the girl to a psychologist …

Dg. Abused child, T 74.8’

‘The interviews, which were conducted with the mother alone and separately with the girl, it follows that the child is afraid of her father because he psychologically and sometimes physically abuses her.

…

The girl … says that she would gladly live with mum if she could, and that dad speaks badly of mum.

…

The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family and finds it difficult to return to her dad's home. She identifies with her mother and thinks that they are very much alike.

Findings: [The girl] is traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed.

I recommend psychological and, if need be, psychiatric counselling.’

‘… The interview with [the child] was conducted without her mother's presence.

In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation on the events of 1 February 2011 during which the child was psychologically and physically abused by her father, which she in her mother's presence reported to the police.

[The child] says that that was not an isolated incident and that she is afraid of her father because she was continuously, from the moment she started living with him, exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he had threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father's physical violence but her mother encourages her by telling her not to be afraid and to ‘endure difficult moments’. The child states that she does not like living with her father because he is threatening her, tells her that he would beat her. She says that the mum loves her more, does not threaten her and is good to her. She uses suppression and ‘forgetting’ as defence mechanisms.

…

The child states that the father yells at her almost every day, curses, tells her that she is a ‘stupid, cow, pig, goat, thief, that she constantly defies him’. She says that this insolent behaviour by her father is rarer since she reported him to the police.

[The child] says that the father has threatened her that he will through ‘his people’ take care that she does not hear or sees her mother. She threatens her that he would cut her hair if she cried after her mother.

The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘shoves’ the food in her mouth. If she resists, he smears the food over her face.

After she reported him to the police, the father controlled himself for a couple of days and then again started yelling but then to a lesser degree. He no longer shoves the food in her mouth but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her.

[The child] is lonely at her father's home because she spends time only with her half-sisters, her friends are not allowed to visit so that [the younger half-sister] would not get sick. After school the father allows her to meet with friends for a half an hour only. She visited one of her friends only once and for more she did not dare to ask the father. She thinks that her father is stricter with her than with her older half-sister.

I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother's and her father's place and that the father threw the sneakers she got as a birthday present from her mother and her partner into trash.

Asked about her father's wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair.

The child shows strong desire to live with her mother because she is emotionally closer with her, the mother supports her in difficult moments, has many friends in her neighbourhood and the mother encourages her to spend time with them, with her mother she is having fun and feels safe. Asked about [the behaviour of] her mother's partner toward her, the child says he is good to her and tries to cheer her up, buys her presents, he is fun and pleasant to talk to.

To the question would she, if she were to live with her mother, be allowed to see the father outside the visitation schedule ordered by the court, she says that it is certain that her mum would allow her to see the father whenever she would wish to do so and states that ‘she would like to move to her mum's [place] right away and forever’.

Findings and recommendations: In order to prevent development of irreversible psychopathological consequences due to continuous abuse, it is recommended to immediately remove [the child] from the family where she currently lives and award custody to the mother.

Psychological, and if need be, psychiatric follow-up is also recommended.’

‘This interview was conducted regarding inappropriate behaviour of the [child's] father I.M.

[The child] stated that a couple of days ago her dad's girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention that. After that her father had called her on her mobile phone and asked her to come to his café … immediately. When she had arrived there he had started yelling at her and asking why she had been talking against him and why she had not told him that she had been in Zagreb. … After that he had told her that she was lying like a dog and told her to get out of his sight.

… Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that he would not live with her mum before she was eighteen years old.

[The child] also states that he said that he would report her mum for having taken her to a doctor in Zagreb and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he is good to her.

Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum.

This interview was conducted in the presence of the [child's] mother …’

‘It is evident that [the child] is very burdened by their parents’ conflict and inadequacy of their mutual communication, which frequently goes through her. The girl shows affection toward, rather than fear from of father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like when her father raises his voice. Asked when that happens, she replies: ‘when I do something bad’.

She is functioning well at school, says that she has many friends …, that at her mother's place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets along well with … the daughter of her father's new partner …

Her mental status is dominated by the emotional burden of their parents' conflict, high emotional tensions, the need to be close with her mother (who she wishes to please by being with her) and, in the relationship with the father, by the loyalty conflict she was brought into.

I am of the opinion the girl was drawn into the conflict of loyalty and is very burdened by her parents' disagreements and conflict which resulted in high emotional pressure, anxiety and hypersensitivity.

I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].’

‘The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets along well both with the father's wife and her mother's partner, and regards the half-brother and half-sisters as real siblings. She is still sad for her parents' differences and their inability to adequately communicate [with each other] and different parenting styles.’

‘[The child] states that she always tells the truth, literally always, and that she feels the worst when she is told that she is a liar like her mum.

… She very clearly articulates her emotional bond and closeness with her mother and the wish to live with her. …

[The child] states that once she attempted to talk with her father about living with her mother but that conversation ended quickly by him telling her that there would be no discussion about that and that she would stay with him until she is eighteen. … She says that her father is very strict and that he often shouts and offends her, which makes her embarrassed and scared. When he last time attacked her, because of the picture [frame], I. [i.e. her father's partner] stopped him, and she felt nauseous. …

She says that she complained to her mother about her father, for which reason she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother, whom she heard saying that unless they agree where [their daughter] was going to live she would be placed into children's home. (The girl is crying for a long time afterwards).

When asked how it is to live with her father, she states that she would like more to live with her mother as she is closer with her. …’

‘Dad is so, so. When he is in the good mood, he is good. When he is not [in the good mood] he is not [good]. Once when he forced me to eat I vomited.’ …

… She said that she came to the expert assessment ‘because of what dad did to me and because I want to live with my mum. I wanted … He threatened me …’ She is crying and indistinctively through tears says that her dad smeared the food over her face as a joke so she felt ugly and embarrassed. ‘He hit me once … He said that he did not but that he only made a [threatening] gesture with his finger …’

After she calmed down we are coming back to the traumatic incident.

You started crying?

…

…

‘Yesterday he told me that he did not at all hit me and that he did not do anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face that was a joke whereas I felt embarrassed. He also told me that if I mention that, he would call [the stepmother and stepsister] to say that that was a joke, which would make me look like a liar. I felt embarrassed and ugly then. …

‘He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to offend me. He called me a cow, stupid goat. He cursed at me. He told me to go to hell … he said that to me many times. He also told me to fuck off many times. … He told me that my mum was a whore (she is crying) …

…

‘Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice but she does it rarely and then I do not do it anymore.’

‘This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview. …

At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her incoming birthday at her mum's place … given that she had celebrated the last year's birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.’

‘This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, seems restrained. … Asked if she would like to change something, says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father, there is no eye contact nor is the father trying to calm her. Each [keeps] for themselves, their eyes fixed forward.’

‘She states in her father's presence: ‘I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dad adds: ‘That would be the best …’

At the direct question whether she asked her dad about it, she says that she did not. She adds that once she asked her dad [about it] and that he said that she would not go to her mum…’

‘…they all think that they know me but they don't know even 1/3 of me. They judge me by my success in school but that isn't me. They don't know what is happening, they see me as a happy girl, but I am opposite of that. I live with my dad from when I was six years old and from day one I want to go to [to live with] my mum … Dad tells me he won't let me go until I am 18. … For some time already I find comfort in cutting myself … the scars are no longer visible, only when I play volleyball or some other sport with the ball and when my arm turns red, then they are visible.’

‘[The girl] came accompanied by her mother because the mother learned of [her daughter's] self-injuring of which [the girl] wrote in a school essay … of 27 October 2014.

‘The allegations of the [child's parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families.

There is an impression that parents, burdened by their permanently strained relationship and the need of each of them to live with the child, consciously or subconsciously, place themselves and their needs first while disregarding the welfare and the needs of the child.

The child protection measure of supervision of the exercise of parental authority was already ordered in respect of the parents during the divorce proceedings, from 1 November until 31 August 2008.

Given that bad communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child's emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in a process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother's and the father's relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.’

‘After having conducted the family assessment procedure … it was established that parents express opposing views as regards abuse and neglect of [their common child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contacts with the mother and using inappropriate child rearing methods. [The father] accuses [the mother] that she is neglecting the child's interests by her behaviour [in that] she does not pay for the child maintenance, does not come to school to consult with teachers or to parents meetings and that the child is being manipulated by the mother.

…

Having regard to the medical documentation at the disposal of the centre, parties submissions, field inspections carried out in [the father's and the mother's] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care for [their daughter] and possible consequences of their behaviour at her psychophysical development.

It is true that the family situation is complex. However, there is no impression that at present [the child's] life is at risk in her father's family.’

‘… it was not made [sufficiently] plausible that such measure is necessary to prevent violence or the risk of irreparable harm from materialising given that at present it remains uncertain i.e. disputed whether [the child] was subject to abuse by her father or was manipulated by her mother …’

‘We do not find [any] contraindications for [the child] to live with her father. [Our] recommendation is that, for the time being, it is not necessary or desirable to change the child's residence, that is to say, that [the child] should continue living with her father.’

‘The aim of the measure was to encourage adequate parental behaviour with a view to preventing and minimising negative effects of [their] conflicting relationship on the child's psychophysical development … in that sense only preconditions for adequate communication between the parents were created so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents observe the visitation schedule. They made few concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, the majority of their communication goes through the child or through text messages. Precisely in that way they are disregarding [her] needs and force [her] to deal with something with which she should not be dealing with at her age (or at any other age for that matter). Both parents think that they are doing what is best for their child while forgetting that their conflict is the major obstacle for the normal psychophysical development and functioning of their child. … [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother's negative influence and ensure stability for her. Those views are O.K. but the only question is how much each of them negatively affects the child by fighting for their views? For a compromise one needs to be ready to partially abandon their views but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend a quality time with her. They differ to some extent in their methods and parenting styles ([the mother] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy of ‘winning’ the child, whereas [the father] is more impulsive with a tendency to give in and oriented at the traditional role of the father) which would not be a problem if they would cooperate … Neither of them disputes that the role of the other parent is also important for the child but they both find it important that the child lives with them thinking that in that way they would diminish harmful influence ‘the other parent has on the child’. This means that the main problem is unresolved parental conflict and the parents should probably work on that outside the [social welfare] centre. When they would be able to talk to each other and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they would be able to function better. In that regard I think that the supervision measure cannot bring better solution to the problems they have.’

‘For the purpose of this Convention:

‘Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention: