Court/Judicial body: Kedainiai District Court
Date: December 16, 2011 CRC
Provisions: Preamble Article 7: Name and nationality Article 9: Separation from parents
Other international provisions: European Convention on Human Rights, Article 8 (right to private and family life)
Domestic provisions: Constitution of the Republic of Lithuania, Article 38 (right and duty of parents to raise their children) Civil Code of the Republic of Lithuania, Articles 3.155 (right and duty of parents to raise and educate their children), 3.161.3 (child’s right to be raised by parents), 3.168.3 (right to demand return of children), 3.180.1 (restrictions on parental authority) Law on Fundamentals of Protection of the Rights of the Child, Articles 9 (right to family), 56 (sanctions for violating children’s rights)
Background: L.S. filed a request for custody of her daughter. In 2008, she had agreed that the child would live with her father, D.K., but D.K. was suspected of murder in 2010 and was later found dead. Following the father’s death, his sister N.V. was appointed as the child’s guardian. Notably, L.S. was accused of facilitating the sexual exploitation of her daughter, but charges were eventually dropped when several key witnesses were murdered, possibly by D.K. For these reasons, because L.S. had expressed no interest in caring for her daughter over the past several years, and because the child did not wish to return to her mother, N.V. asked the court to affirm her custody of the child and limit L.S.’s parental authority.
Issue and resolution: Custody. The Court granted custody to L.S., noting that parents have the primary right to raise and educate their children.
Court reasoning: International law and the Lithuanian legal system establish that the family unit is fundamental. Children have the right to be brought up by their parents, and parents have the right and duty to raise and educate their children. Here, there was not enough evidence to conclude that the child’s mother had neglected or abused her daughter, and there is therefore no reason to limit her parental authority. As such, she should be granted custody of her child.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: The Preamble of the United Nations Convention on the Rights of the Child sets out the principle that a child’s comprehensive and sustainable development would be best achieved when he or she is raised by his or her family members, driven by their love and understanding. Article 7, paragraph 2 of the [Convention] sets out a child’s right to be cared for by his or her own parents. Article 9, paragraph 1 prohibits separating a child from his or her parents, except in situations where this is necessary for the child’s best interests. Article 9, paragraph 3 grants children the right to communicate with their parents if they were separated by an official decision, unless this is incompatible with the best interests of the child. Article 3.161, paragraph 3 of the Civil Code and Article 9 of the Law on Fundamentals of Protection of the Rights of the Child stress the child’s right to family relations. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes state protection of family life. In the Article of the Civil Code mentioned above, the following rights of the child are established: to live with and to be brought up by his or her parents; to be educated and financially supported by his or her parents; to communicate with his or her parents, whether living with them together or separately, and to maintain contact with relatives. The Supreme Court of Lithuania, dealing with restrictions on parental authority and children’s rights, has drawn attention to some of the European Court of Human Rights decisions in similar legal situations applying Article 8. In particular, the European Court of Human Rights has repeatedly stated that the separation of families is a serious matter and should be a last resort. Therefore, the decision must be based on serious and important estimations, taking into account the best interests of the child (Olsson v. Sweden (No. 1) Judgement of 24 March 1988 Series A no. 130, p. 33-34 § 72). … In the preamble to the United Nations Convention on the Rights of the Child, one of the principles is that the full and harmonious development of a child’s personality can only be achieved in a family, and that children should grow up in a family environment, in an atmosphere of happiness, love and understanding. Article 7, paragraph 2 of the [Convention] declares a child’s right to be cared for by his or her parents. Furthermore, Article 9, paragraph 1 prohibits a child’s separation from his or her family unless it is incompatible with the best interests of the child. Hence, a child has primary rights to be brought up by his or her own parents, to be educated and financially supported by them, and to communicate with them as far as it does not affect his or her best interests… The child’s right to be brought up by his or her parents in the family is consistent with the primary right and duty of parents to raise their children. Parents’ duties and rights have priority over other persons’ or institutions’ interests in raising a child. This means that parents have priority in educating their children, taking care of their health, spiritual and moral guidance, and handling other related matters. Therefore, only in cases where neither of the parents can take care of a child may this obligation be transferred to other persons. As a result, Article 3.168, paragraph 3 of the Civil Code establishes that parents have the right to request the return their minor children from any person under whose custody they are if there has been no official decision to separate the family. A child may be in the custody of and reside with another person because of his or her parents’ inadequate behaviour, but if later on a reason to limit parental authority is not established, the child has to be returned to his or her parents. If the parents are unable to perform their duties because they are away, because of illness or because of any other circumstances, the court may appoint a guardian, but only until the parents request the return of their child (Supreme Court of Lithuania Civil Division 2006-10-23 no 3K-3-530/2006).
Follow up: Criminal proceedings against L.S. relating to the sexual abuse of her daughter were again initiated and continued to progress slowly as of July 2012. The daughter is likely to be the main witness in the case against her mother.
Notes: This case received extensive media coverage in Lithuania. Several of the girl’s alleged abusers were high profile politicians, and the decision returning the child to live with her mother raised allegations of corruption. As a result, N.V. refused to cooperate with the proceedings or voluntarily comply with the ruling, claiming that her niece would be at risk of sexual exploitation if returned to live with her mother. Relevant news stories may be found here, here, here, here and here.
CRIN comments: CRIN believes this decision is consistent with the CRC in that, as noted by the Court, children have the right to be raised by the parents as far as possible under Article 7 of the Convention. Article 9 of the Convention further provides that children should not be separated from their parents unless it is determined that this separation would be necessary for their best interests, as in cases of substantiated abuse or neglect. Notably, however, the Court failed to comment on its obligation to seek, consider and take into account the child’s views under Article 12. In addition, there are serious questions as to whether returning the child to live with her mother while preparing to testify against her in criminal proceedings would be in her best interests.
Citation: 2-21-550/2011 Link to Full Judgment: Download here.