Court/Judicial body: The Supreme Court of Lithuania
Date: June 26, 2009 CRC
Provisions: Article 3: Best interests of the child Article 20: Protection of a child without family Article 21: Adoption
Other international provisions:European Convention on Human Rights, Article 8 (protection of private and family life)Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, Article 17 (conditions when a child should be entrusted to prospective adoptive parents); Article 18 (requirements for the child to leave the State of origin and to enter and to reside permanently in the receiving State); Article 20 (requirement for the Central Authorities to keep each other informed about the adoption process).
Domestic provisions: Constitution of the Republic of Lithuania, Article 38(2) (protection of family and childhood); Article 39(3): (protection of children); Law on the Fundamentals of Protection of the Rights of the Child, Article 1(1) (protection of children); Article 1(2) (fundamental rights, freedoms and obligations of the child, guarantees of protection and defence); Article 3 (legal representatives of the child); Article 4(1) (priority of the legal interests of the child); Article 55 (responsibility for the violations of the rights of the child); Marriage and Family Code (applicable until 2001), Section 14; Civil Code of the Republic of Lithuania (applicable after 2001), Book Three: Family Law.
Background: Two sisters ,V. R. and S. R., were ordered to live in a Children’s Care Home by the government following the incarceration of their mother. In 1996, they were both transferred to the United States as part of a temporary two-year educational project. The project was run by a private American organization, and while in the U.S., the sisters lived with the family H. Despite the fact that neither the project nor the organization had any legal rights to temporary care or adoption, the sisters remained with family H. beyond the duration of the two-year project. Although family H. had initially hoped to adopt the daughters, they were unable to do so without the consent of the children’s mother and for other legal reasons. In 2006, when the Lithuanian government finally ascertained the whereabouts of the sisters, they were sent back to Lithuania and informed that they would be living with their biological mother with whom they had had no contact since birth. Traumatised by their sudden return, the sisters sued the government agencies responsible for their care and transfer asking for money damages.
Issue and resolution: Children without a family environment; intercountry adoption. The court expressly declared that in allowing for the girls to be sent to a foreign country without any legal basis or protection, the State had violated all of the legal provisions designed to preserve children’s rights and ensure respect for the best interests of the child. Therefore, the Court affirmed the lower courts’ award of damages to the children for the violations of their rights and the distress caused.
Court reasoning: The priority of children’s rights and interests is in particular enshrined in the Lithuanian legal system. Therefore, State officials implementing and applying legal acts, or addressing legal ambiguities or other matters which are not covered by law, have a primary duty to evaluate a decision or any action taken in light of the best interests of the child and ensure that the rights and interests of the children in question are not and will not be endangered or violated. As this duty was clearly not met in this case, it would be appropriate to award money damages to the children whose rights had been violated.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: Legal acts defining paternity require combining the private interests of the child and their parents with the interests of the State; therefore, parental authority is considered not solely a matter for parents, but also an interest of the State. With this in mind, Article 23, Section 2 of the Constitution grants protection to the family, motherhood, fatherhood, and establishes the principles of child care and custody. Thus, when parental authority is not adequately implemented, the State has a duty to interfere with family relations. […] Moreover, according to the Article 3(2) of the Convention on the Rights of the Child, States Parties have to ensure to the child such protection and care as is necessary for his or her well-being. As a result, the interests of the child in such cases should be interpreted as conditions that ensure overall, comprehensive and cohesive development; prepare them for independent life in the community; correspond with their health requirements; promise cohesive physical and psychological development; and meet public education demands. […] According to the evidence in this case, it is obvious that both sisters were sent to the USA without the Government meeting the legal requirement that a guardian be named. Under Article 20 of the Convention on the Rights of the Child, if a child is temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in the current environment, he or she is end to a special protection and assistance provided by the State. The facts of the case reveal that even though the mother’s parental rights were not officially terminated and children were not officially separated from their mother, the sisters were factually deprived of their family environment primarily because of their mother’s life situation (imprisonment) and therefore acquired a legal right to special protection from the State. It was also set out by the previous courts that the applicants were transferred to the USA not by a competent state institution, but by a private entity which had no legal right to be the children’s guardian. Hence, it could be concluded that the Lithuanian institutions which allowed the transfer of underage children to a foreign country without any legal guardian violated the statutory requirements because they did not maintain and did not guarantee that another country would give these children the same or better protection and support that they could get in their home country. Moreover, the State institutions had at that time no agreement or contact with similar institutions in the USA concerning the protection of transfered children. Also, the Appeals Court established that for a certain period of time, Lithuanian officials had no information about the applicants’ place of residence. Therefore, it is obvious that there is a flagrant breach of Articles 4(1) and 4(5) of the Law on Fundamentals of Protection of the Rights of the Child and Articles 20 and 21 of the Convention on the Rights of the Child as underage children were left without any legal protection as a result of the actions (or inactions) of State institutions and officials. […] The fact that children need to grow up in a family to be safe and secure and that only family relationships are absolute is recognized by the majority of around the world because the family is the primary element of a society that ensures the best environment for children’s development. The facts of the case show that the American family had no real intention of adopting the applicants since, on the one hand, there was a significant delay in the family following through with adoption procedures and, on the other hand, the Lithuanian state authorities never addressed the issue at all. According to Article 20 of the Convention on the Rights of the Child, States must provide the following care options for a child who is removed from his or her family: firstly, a child should be looked after by his or her family relatives; only if it is not successful should guardianship (care) or adoption then be discussed; and finally, if both of these options fail, the child might be placed in the custody of a child (care) institution. It is important that the choice of placement best suit a child’s interests, and it cannot a priori be argued that institutional care is better or worse than adoption (Senate of Lithuanian Supreme Court, 31 December 1999, Resolution No. 24). […] Public authorities, who are exceptionally responsible for child protection, failed to prevent violations of the child’s right to life in a home environment or to guarantee the best interests of the child in this case. Because Article 3(1) of the Convention on the Rights of the Child requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Also, Article 41(1)(1) of the Law on Fundamentals of Protection of the Rights of the Child stresses that the legitimate interests of the child should always prevail. Further, the Lithuanian legal system in particular enshrines the priority of children’s rights and interests, meaning that during the process of making legislation as well as implementing and applying acts, or considering matters which are not covered by the law, it is always necessary to evaluate the decision or action in the best interests of the child and ensure that their rights and interests are not and will not be endangered or violated. Therefore, is is notable that State enforcement officials allowed the transfer of children from their home country and home environment without any legal basis and did not follow and therefore flagrantly violated international and national statutory provisions mentioned and discussed above. Notes: The Court not only declared that violations were committed by the competent State institutions and officials, but also granted a solid monetary sum to the applicants as non-pecuniary damages. As a result, it created a legal precedent and clarified law expanding the term of “non-pecuniary damages”. It is also noteworthy that although the initial violations occurred in 1996, the Court did not address the status of laws relevant at the time of the violations given that its decision was issued in 2009 when a new Civil Code of the Republic of Lithuania (adopted in 18 July 2000, applicable from 1 July 2001) with primary and explicit emphasis on the best interests of the child was in force. CRIN Comments: CRIN believes that this decision is consistent with the CRC. Children without families have the right to protection under the Convention, and should in no circumstances be transferred outside of their home environments and of origin without a serious and considered investigation into their best interests. Citation: 2009 06 26, 3K-3-314/2009, LAT, Civilinė, Nutartis. Link to Full Judgement:http://www.lat.lt/3_nutartys/senos/nutartis.aspx?id=34723 This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related Instruments: European Convention for the Protection of Human Rights and Fundamental FreedomsHague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Countries Lithuania CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.