Parental authority, child custody and access rights
II. RELEVANT DOMESTIC LAW A. The 1980 Hague Convention on the Civil Aspects of International Child Abduction “the Hague Convention” 138. The preamble of the Convention includes the following statement as to its purpose: “ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...” 139. The object of such a return is that, following the restoration of the status quo ante, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident. 140. Article 3 of the Convention reads as follows: “The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...” B. Law of 17 June 2 008 amending criminal procedure 141. Section 7 (1) of the law of 17 June 2008 amending criminal procedure “the Criminal Procedure Act”) provided that an order that the case be archived must promptly be notified to the Attorney General ( procuratore del fisco ), the person charged, the victim, and the person who had pressed the charges. It must further be communicated to the executive magistrate ( “ magistrato dirigente ” ). An appeal can be lodged against such an order, by the person charged or the victim, within thirty days of its notification. The appeal shall be lodged with the Giudice delle Appellazioni Civili, who must be a different judge than the one who originally decided the merits of the cause. He or she should deliver a reasoned decision within thirty days. An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge. 142. Its section 10 regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force. The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within the following nine months of its entry into force. THE LAW I. PRELIMINARY OBJECTIONS The Government ’ s preliminary objection regarding the first applicant ’ s standing also to act on her child ’ s behalf 1. The parties submissions 143. The Government submitted that the second applicant did not have standing to act in the proceedings given her young age. In order to act on behalf of her child, the first applicant should have obtained the father ’ s authorisation and/or that of the judge ( giudice tutelare ), but she had not done so. Awarding her that status could create a conflict situation in that even her father could lodge an application before the Court on her behalf. Moreover, certain aspects of her complaints, such as those relating to procedural aspects of the proceedings, could clearly have no effect on the second applicant, as she was not a party to the domestic proceedings. 144. Referring to the court ’ s case - law, the applicants submitted that the second applicant had locus standi. This was even clearer, considering that the first applicant was not only the biological mother, but also had joint custody of the child and enjoyed parental rights. 2. The third - party Government 145. The Italian Government submitted that the second applicant had full locus standi in the proceedings, on the basis of the Court ’ s case-law regarding representation by parents, particularly when the representing parent is in conflict with the authorities and is contesting their decisions in the light of the Convention provisions. 3. The Court ’ s assessment 146. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and who criticises their decisions and conduct as not consistent with the rights guaranteed by the Convention. In the event of a conflict over a minor ’ s interests between a natural parent and a person appointed by the authorities to act as the child ’ s guardian, there is a danger that some of those interests will never be brought to the Court ’ s attention and that the minor will be deprived of effective protection of his or her rights under the Convention. Consequently, even where a mother has been deprived of parental rights - and indeed that is one of the causes of the dispute which she has referred to the Court - her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the child ’ s behalf, too, in order to protect his or her interests. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138-39, ECHR 2000 ‑ VIII ). 147. The Court accordingly concludes that the first applicant, the natural mother who still has parental rights, the exercise/limitations of which she is disputing before the Court, has standing to act on behalf of her child, and therefore the Government ’ s preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION 148. The applicants complained under Article 8 about the custody proceedings, in particular about the order of 19 February 2008, and in general about the restrictions imposed on the applicants ’ visits. Under Article 6 they complained that the hearing leading to the latter decision had been unfair, and about the length of the entire proceedings. The relevant Articles, in so far as relevant, read as follows: Article 8 “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.” 149. The Government contested that argument. 150. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I ). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, ECHR 2010 ‑ ... (extracts) ). 151. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8, and may accordingly be examined as part of the latter complaint. A. Admissibility 152. The Government originally objected that the complaint against the decision of 19 February 2008 was inadmissible for non-exhaustion of domestic remedies since the appeal against that decision was still pending. However, pending these proceedings, the Government informed the Court that the proceedings had ended. 153. In this light the Court considers that the objection has been withdrawn, or in any event that it is to be dismissed. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ and third parties ’ submissions (a) The applicants ’ submissions 154. The applicants complained that they had suffered a breach of their rights under Articles 8 and 6 and of the Convention, in particular in view of the decree of 19 February 2008, where the first applicant had not been duly represented and in which the judge had based his decision solely on statements by children ’ s services and the father, notwithstanding the latter ’ s abduction of the minor. As a result, the restrictions imposed on the first applicant, together with the six-month period of isolation in San Marino, were contrary to Article 8 and the entire proceedings were unreasonably lengthy, more than four years, and that no final decision had yet been taken, contrary to Article 6. 155. In the applicants ’ view, the judicial authorities and children ’ s services were biased, as it appeared from, for example, social services ’ foregone conclusion that the second applicant would have resided in San Marino (paragraph 19 above), the decision of 18 December 2006, in favour of Mr X., containing an erroneous interpretation of a previously crystal - clear order (paragraph 15 above) and the decision of 19 February 2008 which had been arbitrary and discriminatory. They considered it inconceivable that an abduction planned with children ’ s services would have been endorsed by the judge. Similarly, the restrictions placed on the mother on the basis of her alleged intention of removing the child were unfounded, as the first applicant had shown reasons, by means of the relevant certification, why the child could not attend certain visits with Mr X. As a result of the impugned decision which found for joint custody, the first applicant could only see her daughter for a few hours (up to 11 August 2008 ), having every time to make a trip to San Marino from Italy, and unlike the father she was not able to take the child on holiday for a few days. 156. The applicants explained that during the domestic proceedings the first applicant was represented by two lawyers, only one of whom was familiar with the meeting with children ’ s services and the party ’ s experts, while the other representative had withdrawn. They submitted that, bearing in mind the issue of the child ’ s abduction and other evidence which came to light only after the date of the hearing had been fixed, of which the judge was made aware, it was crucial to have her lawyer present at that hearing. In the absence of that lawyer, the judge should at least have appointed a lawyer to represent her. Thus, the decision in question had been given in breach of the adversarial principle. 157. As to children ’ s services the applicants submitted that the person responsible for their case file only had a degree in pedagogy and not in psychology, thus could not sign in that capacity, and could not properly assess the child ’ s medical condition. Moreover, children ’ s services had not acted in such a way as to foster joint parenting, and had repeatedly refused the first applicant ’ s expert access to relevant documents and video recordings of meetings with the child. It followed that the domestic court did not exercise any supervision of the work of children ’ s services in that respect. Another supposedly independent expert, the psychologist in charge of monitoring the meetings held at X. ’ s house, was the psychologist of a committee with which relatives of X. were involved. They further submitted that their expert, a psychological consultant for the Council of the Order of Psychologists of San Marino (“the Order”), had not been in accordance with the reports drawn up by children ’ s services, which, in her view, had not been supported by scientific evidence. In this respect the expert complained to the Order, in particular about the procedures used by children ’ s services, the lack of training, their omissions and lack of co-operation. 158. Lastly, the applicants submitted that the authorities ’ actions following the lodging of the application with the European Court of Human Rights had been inappropriate. The applicants contended that following the introduction of their case before the Court, the judge in charge of the domestic proceedings had refused to continue to hear the case. She had however appointed another judge, an action which in the applicants ’ view was not consonant with her refusal to hear the case. Indeed, the unusual choice of the judge who would have been her successor in hearing the case raised doubts as to his impartiality. They noted that once they became aware of the application to the court, the CTU ’ s reports had been altered in their disfavour, and the content of the subsequent decrees had tastelessly made reference to the same. (b) The Government ’ s submissions 159. The Government submitted that the impugned decision of 1 9 February 2008, granting joint custody and holding that the second applicant should live with the father, was based on the fact that, as appeared from the expert evidence submitted by children ’ s services, there was a high level of conflict between the parents and the mother was reluctant to allow contact with the father. The Government pointed out that in June 2007 the mother had taken the child to Italy, notwithstanding the decision of 17 April 2007, which held that the child should remain in San Marino ( see paragraph 22 above ), and from 2007 the first applicant had repeatedly refused to allow contact with the father, contrary to the decree of 25 June 2007 (paragraph 29 above). Thus, the impugned decision had been taken in the best interest of the child, having considered that the father was the parent who would have allowed contact with the other parent. The court ’ s conclusion had been based on the objective findings by children ’ s services following their monitoring of the parent-child relationships, which repeatedly found that the mother was hindering the child ’ s contact with the father, to the extent that in 2009 they feared the second applicant was suffering from Parental Alienation Syndrome (paragraph 9 7 above ). 160. As to the child services, the Government submitted that according to law their function included providing residential care services ( assistenza domiciliare ) in all cases where there existed difficulties in parent-child relationships. They were judge auxiliaries /assistants, representing the institutional instrument allowing the court to acquire all the necessary elements to correctly evaluate any decision related to custody and adoption. Children ’ s services, as public employees, were subject to Public Employment Law and to supervision by the Social Security Institute. Failure to abide by the duties imposed could lead to disciplinary sanctions as imposed by law through the Disciplinary Board. Children ’ s services personnel were qualified individuals, with degrees in psychology and/or pedagogy with a two year specialisation course in Psychology or with at least five years ’ service in the health sector, who have been successful in a public competition and whose profession therefore guaranteed their independence and impartiality. Moreover, such qualities had often been confirmed by L. C. , a court expert, whose authority in child therapy was indisputable. In reply to the third- party intervener, the Government considered that the dual role carried out by children ’ s services was functional, enabling parents to reach agreements in the best interest of the child. Thus, the claims in that connection were completely unfounded and unsubstantiated. 161. The Government highlighted that the applicant had exercised all her contact rights punctually as ordered by the impugned decree, within the agreed arrangements, irrespective of her reluctance to allow contact with the father. Any cautionary measures adopted, such as the presence of the psychologist or children ’ s services, had been deemed necessary to avoid any risk of child removal, bearing in mind the first applicant ’ s prior behaviour. Such measures were in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. 162. The Government further submitted that the proceedings leading to the decree had been duly notified and conducted in the presence of both parties, who were allowed to make all the relevant submissions, and the fact that one of the applicant ’ s lawyers was not able to attend was irrelevant. They further noted that one of her lawyers, who had previously relinquished his mandate, had been reinstated. The lack of organisation of the first applicant ’ s defence could not weigh against the judge ’ s decision to proceed with urgency, as had been requested by the first applicant. 163. As to the alleged impartiality of the judge, the Government submitted that notification of the application to the domestic judge and the attachment of the documents to the domestic case file served the purposes of a procedure for the abstention of the judge from the case. The judge appointed subsequently was an administrative judge, who in terms of law could also be assigned to civil cases, as also confirmed by the decision of the executive magistrate ( “ magistrato dirigente ” ) of 1 December 2010. His impartiality was crystal clear, as could be seen from the fact that he even increased the time period during which the minor was to be placed with the mother. Moreover, according to the Government, no argument could be made in relation to the father ’ s alleged kidnapping, since this issue did not appear from the children ’ s services reports or any judicial decisions. Moreover, they insisted that the father had not abducted the child but was simply on holiday with her. (c) The third - party Government ’ s submissions 164. The Italian Government firstly noted that Mr X. ’ s behaviour amounted to kidnapping, in so far as his action to take away the child and not return her to her mother according to stipulated conditions had not been authorised by a judge. They further submitted that the allegation that the first applicant had attempted to kidnap the child was not substantiated, as it was clear from the decree of 25 June 2007 (see paragraph 28 above) that the applicants were authorised to reside in Rimini, Italy. In consequence, it could not be acceptable that the first applicant ’ s contact rights were hindered by the application of the Hague Convention conditions, which did not apply to the first applicant ’ s situation. Moreover, when Mr X. started requesting that these conditions apply (February 2008) the Hague Convention was not yet applicable to issues between the two states, as it had entered into force only on 1 August 2008. 165. The Italian Government considered it deplorable that the hearing leading to the impugned decision had taken place without legal representation for the first applicant, and that the refusal of the judge to grant an adjournment for this purpose raised issues as to the fairness of the proceedings under Article 6 § 1. They reiterated that the domestic jurisdictions had to make a detailed examination of the family ’ s situation and take into consideration other elements, such as the emotional, psychological, material and medical needs of the child, as well as undertaking an overall assessment of the balance between competing interests, bearing in mind the best interests of the child. In their view a violation of Article 6 § 1 persisted, in that after nearly three years the appeal proceedings against the impugned decision had not yet been terminated. This delay was not understandable in view of the delicate situation, the best interest of the child and her rights under Article 8. Moreover, the Italian Government were of the view that the deterioration in the second applicant ’ s health from 2009 onwards could have been due to incompetence on the part of children ’ s services, as evidenced by the Associazione Pro Bimbi ’ s submissions (see below). They therefore requested the Court to examine the role played by children ’ s services in so far as they appeared to have put aside the interests of the child in favour of those of the father. 166. Lastly, they considered that the first applicant must have suffered distress at seeing her child being moved from one place of residence to another. However, her good faith towards Mr X. had been evident even by her recent agreement to allow the child to attend Mr X. ’ s wedding. The Italian Government considered that a joint custody regime should have been accompanied by a decision to have the child reside with the mother, which according to child psychology studies was a fundamental period in children of such a young age. Moreover, bearing in mind that it appeared that the second applicant was often left in the care of her paternal grandparents, the Government had trouble understanding the choice of the San Marino authorities to order residence with the father. 167. In the light of the circumstances of the case the Italian Government was of the view that the San Marino Government had violated the applicant ’ s rights under Article 8 in conjunction with Article 6. (d) The third - party intervener ’ s submissions 168. The Associazione Pro Bimbi provides, through its activities, support for parenting and the well - being of minors. It receives support from, inter alia, the Ministries of Public Instruction, Health, Justice, and Foreign Affairs. They submitted that in 2009 they had received a number of requests from separated parents in respect of their loss of parental rights and/or joint custody. Some of these cases had turned out to be extremely alarming from the point of view of the right to joint parenting and regular contact rights. These complaints mainly concerned children ’ s services. During the association ’ s discussions on child custody, strong criticisms of children ’ s services were voiced by parents, in particular in respect of their lack of qualifications and ineffective support for parents. Many spoke about their distressing experiences in trying to see their children, particularly in cases of parents with dual nationality, who publicly complained that they had faced discriminatory treatment from the services. The association therefore invited children ’ s services and the Council of the Order of Psychologists of San Marino (“the Council”) to attend subsequent sessions. Unlike the Council, children ’ s services did not send any representatives. The Council ’ s representative, in reply to questions set, confirmed that in San Marino it sufficed to have a degree in pedagogy without a further professional qualification to be employed by children ’ s services. Moreover, they were not subject to monitoring by the Council and were not bound by a code of conduct. 169. The association further cited a letter from children ’ s services in which they acknowledged that, with a total of only seven staff members and a lack of resources and funding, they were not in a position to carry out effectively their role of support for judges and protection of minors of 150 families, of whom fifty were cases of high - conflict separations which were often hard to mediate. The association also considered that it was anomalous for the staff of children ’ s services to assume conflicting roles, namely the function of public officials reporting to judges and also as mediators providing support for families and children. Concerned about the above matter, the association had sent letters to the head of the Institute for Social Security, who was in charge of children ’ s services. The latter responded that a commission of enquiry would be set up and investigations carried out. Up to the date of submissions no response had been received. 2. The Court ’ s assessment (a) General principles 170. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see Keegan v. Ireland, 26 May 1994, § 50, Series A no. 290 ). Family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty. Thus, the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8 (see Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144 ). 171. Domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life (see, for example, Hoffmann v. Austria, judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29, and Palau-Martinez v. France, no. 64927/01, § 30, ECHR 2003-XII). 172. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”. Necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see W. v. the United Kingdom, 8 July 1987, § 60, Series A no. 121. ) 173. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “ respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005 ). The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take such measures. This also applies to cases where contact and residence disputes concerning children arise between parents (see Kosmopoulou v. Greece, no. 60457/00, § 44, 5 February 2004 ). 174. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State ’ s margin of appreciation (see W. v. the United Kingdom, cited above, § 59, and Keegan, cited above, § 49 ). 175. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody (see, inter alia, C. v. Finland, no. 18249/02, § 53, 9 May 2006 and Wildgruber v. Germany, (dec.) nos. 42402/05 and 42423/05, 29 January 2008 ). However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001 ‑ V (extracts). 176. Where the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance ( see Zawadka, cited above, § 54, and Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A). Moreover, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ( see Zawadka, cited above, § 67) which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002 ). 177. Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority ’ s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on relevant considerations and is not one-sided, and hence neither is, nor appears to be, arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 ( see W. v. the United Kingdom, cited above, § 62 and 64 in fine ). In conducting its review in the context of Article 8 the Court may also have regard to the length of the local authority ’ s decision-making process and of any related judicial proceedings. An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time ( ibid. , § 65; see also H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120 ). 178. It is of paramount importance for parents always to be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which is at the disposal of the domestic courts ( see Sahin v. Germany [GC], no. 30943/96, § 71, 8 July 2003, and Kosmopoulou, cited above, § 49 ). It is, moreover, for the authorities to show that there are compelling reasons for refusing a data subject ’ s request to be provided with a copy of their personal data files ( see Tsourlakis v. Greece, no. 50796/07, § 44, 15 October 2009). (b) Application of the above principles to the present case 179. In the present case the Court notes that in December 2006 the competent national courts granted sole custody of the child to the first applicant. Six months later, in June 2007 the domestic court ordered joint custody and that the child should live and attend school for the following school year in Rimini, Italy, where she had established herself with the mother. However, by an order of 21 September 2007 the domestic courts decided that the second applicant should reside in San Marino, as Mr X. had the right to easy and unsupervised contact with his child. On 12 November 2007 joint custody was upheld as being in the best interest of the child. By a decision of 19 February 2008, the court, again upheld joint custody and ordered the child to be returned to San Marino to live with her father and to attend school there. This decision was confirmed on appeal three years later. In the meantime a number of orders had been issued on the matter, upholding joint custody and residence with the father, in San Marino. 180. The Court observes that from 2007 onwards, the first applicant ’ s rights had diminished from full custody, to a right to supervised contact, to be held in San Marino, of nearly two hours per day. Subsequently, contact hours changed to three hours on alternate days, including an overnight stay, and remained subject to the same conditions up to August 2008. Following that date contact hours increased to two to six hours per day, overnight stays, and alternate weekends with the parents, up to entire weeks over the Christmas holiday period. Most of these visits were nevertheless supervised either by the father or his legal representatives, children ’ s services or CTU experts, who videoed the meetings. 181. It has not been contested by the parties that the domestic decisions related to the applicants ’ custody and contact rights constituted interference with the applicants ’ family life which was in accordance with the law, and the Court considers that the measures pursued the legitimate aims of the protection of health or morals and/or the protection of the rights and freedoms of others, namely the child and her parents. It remains to be ascertained whether the measures were necessary in a democratic society. 182. The Court notes that in this sphere its review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced by the domestic courts were relevant and sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130 ). 183. In reviewing whether the domestic courts based their decisions on relevant grounds, the Court observes that the domestic courts persistently reiterated the best interests of the child. They based their decisions on a number of further considerations, such as the relationship between the parents, the inherent problems of joint custody in such cases, particularly were it transpired that one parent was, for the most part, hostile towards the other and hindered contact rights, the attitude and availability of the parents and the specific environments involved. In each of their decisions they relied on detailed and complete reports from the children ’ s services (see, for example, paragraphs 22, 28, 38, 50 and 77 ) which were drawn up following constant and specific requests by the domestic courts. These reports were a result of the constant monitoring performed by the service. From 2007 onwards the courts further had the benefits of reports by ex-parte counsellors and experts, and from 2008 onwards also reports by the CTU. Moreover, the parties had regularly made written and oral submissions before the court and were allowed to air all their requests and concerns, which the courts undoubtedly took into consideration. 184. In this light, the Court finds it reasonable, that the courts considered it necessary - for the protection of the child ’ s interests - not to maintain in place a sole custody order in favour of the first applicant but to award the parents ’ joint custody, neither does it appear illogical to have opted for residence with the father. It is also noted that the domestic courts did not exclude a change in regime if circumstances so required. Furthermore, the domestic courts took due care to recommend education programmes for the family and to foster the parents ’ reconciliation and co-operation in the best interest of their daughter. 185. As to contact rights, the Court has already observed the details of the regime applied (see paragraph 180 above ). It reiterates that the national authorities having the benefit of direct contact with all the persons concerned are better placed than the international judge to assess such needs. The Court considers that the measures adopted do not appear manifestly arbitrary or unfair. In consequence, it is not for the Court to enter into a detailed assessment of the most appropriate contact arrangements. It suffices for the Court to note that these rights were not denied or suppressed at any moment, the applicants having maintained constant and regular contact with each other, and the first applicant having retained joint custody over the second applicant. While supervision and often limitation as to the venue of contact meetings (the father ’ s residence), must have restricted the purpose of visits between mother and child, limiting to some extent their contact and the opportunity to develop their relationship - a matter which was in both of their interests and particularly the child ’ s, whose interest is paramount - the Court considers that monitoring by the child services was necessary to allow the domestic courts to make informed decisions as to custody and contact rights. Moreover, such monitoring also served to ensure the child ’ s well being. The Court is ready to accept that while there was no threat of violence or serious health issues (see, a contrario, Gluhaković v. Croatia, no. 21188/09, § 63, 12 April 2011 ) there could have been a risk of psychological abuse as evidenced by the suggestions that the child might develop Parent Alienation Syndrome, thus justifying the father ’ s presence at meetings. This having been said, the Court refutes the Government ’ s argument that such limitations were necessary as a precautionary measure against a possible abduction by the first applicant. The Court notes that when the first applicant moved to San Marino, she had informed the judge (see paragraph 26), similarly, when requested to submit the second applicant ’ s passport she did so (see paragraph 56). While she appeared to be more hesitant to submit the second passport, the Court notes that in the meantime it was Mr X. who had requested a second passport and who was allowed to travel with the child (see paragraphs 70 and 92). Moreover, it had been repeatedly stated by the courts that travel was banned unless authorised by it (see paragraphs 51, 70 and 99), a measure which in principle deterred unilateral decisions to take the child away. Furthermore, the Court notes that there is nothing in the case file which gives objective grounds for any fear of the applicants ’ absconding, particularly since the first applicant ’ s family lived in Rimini, not far from San Marino, and indeed any mere suspicions or fears which Mr X. might have had had neither been substantiated nor confirmed by the courts. Lastly, the Court notes that the presence of the parties ’ lawyers had not been court ordered, and indeed it was the children ’ s services that requested the court to prohibit such a practice (see paragraph 69 above). Thus, any discomfort caused in this respect could have easily been avoided by the parties ’ good will. 186. As to the applicants ’ contention that the children ’ s services were biased and unqualified, the Court considers that quite apart from the submissions made by the third-party intervener association, the matter remains unsubstantiated, and in any event the Court has not discerned any proof of the lack of effectiveness of such a service, particularly where, as in the present case, the proposals made by the service do not appear to be manifestly arbitrary or discriminatory. While it is true that the domestic courts have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter ’ s conduct does not defeat the authorities ’ decisions (see Scozzari and Giunta v. Italy [GC], cited above, § 179), the Court notes that in the present case, the applicants had ample possibilities to criticise and contest the children ’ s services qualifications, actions and findings in the contentious proceedings, as in fact the first applicant had done in relation to the children ’ s services failure to facilitate her contact rights (see paragraphs 46, 48 and 56 above). Moreover, when at issue, the domestic courts considered that the children ’ s services were made up of reliable experts (see paragraph 110 above). 187. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. In assessing whether the domestic courts ’ reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the first applicant with the requisite protection of her interest. 188. The Court notes that, throughout the proceedings, the applicant, represented by counsel, had the opportunity to present her arguments in writing and orally. Indeed she had presented ample submissions to the domestic courts as evidenced by the voluminous documentation submitted to the Court. As to the hearing of 19 February 2008 on the merits of her and Mr X. ’ s requests, the Court considers that given the fact that the first applicant ’ s representative had been duly notified of the date of the hearing (see paragraph 43 above), that at the actual hearing she had originally been represented by co-counsel, and that she had had the opportunity to submit written pleadings, it cannot be said that her involvement had not been effective at that stage. This is more so in view of the fact that in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. In this light, and bearing in mind that the decision of 19 February 2008 only confirmed the retention of a joint custody regime which had previously been decided (see paragraphs 28 and 38 above ) the Court finds reasonable the refusal of the domestic court to adjourn the hearing. 189. As to the applicants ’ complaint that the proceedings were unreasonably lengthy, while the Court finds reprehensible that the appeal against this decision took three years to be decided (6 March 2008 to 7 March 2011), it notes that various orders were delivered and arrangements made in the meantime, and that the first applicant ’ s access rights have been regularly maintained, the calendar of visits being changed regularly by agreement of the parties and the assistance of children ’ s services. As to the overall length of the proceedings the Court notes that the first applicant intervened in the custody and contact proceedings in December 2006 and the proceedings are to date still pending. However, it is evident from the facts of the case that there have not been any significant lapses of inactivity, or adjournments for reasons related to internal organisation (see, a contrario Veljkov v. Serbia, no. 23087/07, § 88, 19 April 2011 and Wildgruber v. Germany, nos. 42402/05 and 42423/05, § 61, 21 January 2010 ). Indeed it also transpires that the parties ’ requests for urgent hearings had been immediately followed up, with the domestic courts calling on extraordinary hearings of their own motion when necessary (see, for example, paragraph 43 above). Thus, although parallel proceedings and the fact that the courts had to decide a number of ancillary matters simultaneously must have detracted from the required speediness of custody proceedings, the Court considers that overall the domestic courts appear to have dealt with the proceedings with the requisite diligence. 190. In so far as the applicant argued that she had been denied access to the proper documentation, namely that by a decision of 17 July 2008, the first applicant was denied access to the video recordings of her visits with the second applicant, the Court considers that the information contained in those recordings was pertinent to the applicants ’ relationship and could have allowed the first applicant to become aware of any apparent negative points which could have influenced the judge against her and if necessary take them into account, in future, with a view to improving the relationship with her child. The only reason given by the domestic court for such a refusal was that the applicant had no right to such materials, children ’ s services being the judge ’ s auxiliary (see paragraph 77 above). The Court is not persuaded by this reasoning and no other compelling reasons supporting their refusal to provide the video recordings have been put forward. However, it notes that nine months later the parties ’ requests for CTU recordings and all relevant documentation had been granted (see paragraph 10 4 above), thus, the first applicant could make use of such relevant information for the purposes of the proceedings which were still ongoing. Thus, the initial refusal cannot suffice to conclude that the State failed to comply with its positive obligations to ensure respect for the first applicant ’ s private and family life. 191. Lastly, as to the claims, raised in the applicants ’ observations, regarding the impartiality of the relevant judges, the Court observes, as did the appeal court, that no request for the withdrawal of such judges had been made at the relevant time. 192. Having regard to the state ’ s margin of appreciation in this sphere, and having considered the case as a whole, the Court is satisfied that the domestic courts ’ procedural approach provided adequate material on which to reach decisions based on relevant and sufficient reasons while adequately involving the first applicant in the decision-making process. 193. It follows that there has not been a violation of Article 8 of the Convention in respect of the applicants. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 194. The applicants complained that they did not have an effective domestic remedy in respect of the second applicant ’ s abduction as a result of the tribunal ’ s decision to archive the case against Mr X. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 195. The applicant ’ s submitted that the law referred to by the Government which came into force on 1 September 2008, provided in its Article 10 of the transitional and final rules as follows –“the present law applies to all criminal proceedings for which notice of the crime reached the investigating judge in the period after the law came into force. The present law does not apply to cases pending on the date when it came into force if they are published and filed within the following nine months.” In the present case, the proceedings against Mr X. were filed on the last possible day, thus excluding any possibility of an appeal. 196. The Government submitted that the first applicant could have lodged an appeal before the Judge of Criminal Appeals ( Giudice delle Appelazioni Penali ), against the Commissario della Legge ’ s decision of 10 June 2009 to archive the case, which, if upheld, could order the reopening of the preliminary investigation and assign it to a different inquiring magistrate. Such an action was provided for by Article 135 of the Code of Criminal Procedure as amended in 2008 and which came into force on 1 September 2008. The latter provided the accused and the injured party with the possibility of lodging an appeal within thirty days of notification of the order that no further action would be taken. The Government further submitted that the transitional provisions mentioned by the applicants were not applicable to the case in question. However, even if this were so, the decision to archive the case was delivered several days after the expiration of the nine months from its entry into force. 197. The Italian Government supported the observations submitted by the San Marino Government. B. The Court ’ s assessment 198. The Court notes that the parties disagreed as to the application of the relevant law and they have not submitted any information as to the functioning of the legal amendment in practice. Nor did the Government give an explanation as to why the transitional measures did not apply to the present case. However, the Government contended that even if they had the applicants would still have been in time to appeal. 199. Indeed, the Court observes that the transitional provisions clearly stated that the new law, providing for a right to appeal, would not apply to cases which were archived within nine months of its coming into force. It notes that the amendment to the law came into force on 1 September 2008 and the case was archived on 10 June 2009, thus more than nine months after the entry into force of the amendment. It therefore appears that in principle an appeal was available to the applicants. In the present circumstances and in the light of the submissions on the matter, the Court considers that since the applicants failed to even attempt an appeal, it would be speculative to examine whether such a remedy would have been effective. 200. It follows that this part of the complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 201. The first applicant complained that from February to August 2008 the second applicant was not allowed to leave the State of San Marino, contrary to Article 2 of Protocol No. 4, which reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 202. The Government contested that argument. A. Admissibility 203. The Government submitted that the second applicant, as a minor, did not have an autonomous right to freedom of movement, and therefore could not be considered a victim. 204. The Court makes reference to its conclusion about the second applicant ’ s victim status, above. Moreover, it notes that the rights guaranteed by this provision apply to any person, and not solely to adults. In the present case, the first applicant and Mr X. had joint custody over the second applicant. In consequence, they were in principle both authorised and capable of enabling the second applicant ’ s travel, had it not been for any restrictions imposed by the national courts. 205. It follows that the Government ’ s objection in this respect must be dismissed. 206. The Court further notes that this complaint is linked to the one examined above under Article 8 and must therefore likewise be declared admissible. B. Merits 1. The parties ’ submissions 207. The applicants submitted that although the first applicant had joint custody the second applicant ’ s movements were restricted as a result of the limitations imposed on her by the court. Indeed from 13 February 2008 up to 11 August 2008 the second applicant was confined to the territory of San Marino, for no legitimate reason. It was clear that such a measure had been granted in order to prevent Italian courts from having the jurisdiction to decide on the case. 208. The Government submitted that the applicant ’ s restrictions arose from the court decisions ordering the child to be resident with the father in San Marino and the mother ’ s contact rights to be exercised in San Marino and such a decision could not constitute a violation of the said provision. 209. The Italian Government considered that the limitations imposed on the second applicant ’ s freedom of movement, namely prohibiting her from going to Italy, had the aim of distancing the second applicant from her mother and her maternal family. They stated that the reasons put forward by children ’ s services and the CTU had been contradictory and no specific reasons had been given for the decision to keep the second applicant with the father and not with the mother, particularly in view of her tender age and needs. In consequence, in their view, there had been a violation of the second applicant ’ s rights under Article 2 of Protocol No. 4. 2. The Court ’ s assessment 210. The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person the right to liberty of movement within a territory and the right to leave that territory, which implies a right to leave for any country of the person ’ s choice to which he or she may be admitted. Thus, freedom of movement prohibits any measure liable to infringe that right or to restrict the exercise thereof which is not “in accordance with the law” and does not satisfy the requirement of a measure which can be considered “necessary in a democratic society” in the pursuit of the legitimate aims referred to in the third and fourth paragraph of the above-mentioned Article (see Baumann v. France, no. 33592/96, § 61, ECHR 2001 ‑ V (extracts). As regards the proportionality of the interference, the Court has particular regard to the duration of the measure in question (see Nikiforenko v. Ukraine, no. 14613/03, § 56, 18 February 2010 ). 211. The Court reiterates that an obligation to ask the authorities permission to leave each time does not correspond to the sense of the concept “freedom of movement” (see Ivanov v. Ukraine, no. 15007/02, § 85, 7 December 2006 ). The Court considers that the series of domestic decisions banning travel, and dispossessing the second applicant of her passport, in the present case, restricted the second applicant ’ s right to liberty of movement in a manner amounting to an interference, within the meaning of Article 2 of Protocol No. 4 to the Convention (see Roldan Texeira v. Italy (dec.), no. 40655/98, 26 October 2000, and Baumann, cited above, § 62 ). 212. The parties did not dispute that the decisions banning travel from the territory of San Marino in the present case were compatible with domestic procedural law and had a basis in the national legal order. 213. As to the legitimate aim cited by the Government, the Court reiterates its earlier assessment that there were no objective grounds founding any fear of the second applicant being kidnapped by her mother. Nevertheless, bearing in mind that at the relevant time San Marino was not a party to the Hague Convention, the Court recognises that the domestic courts felt bound to issue directions which could provide alternative protection against any such eventuality. In these circumstances, the Court therefore is ready to accept that the measure pursued the maintenance of “ordre public” and the protection of the rights of others. 214. The Court observes that in the present case the second applicant was confined to the territory of San Marino from at least 22 February 2008 to 11 August 2008. Bearing in mind the short duration of the restriction, the Court considers that the measure at issue was proportionate to the aim pursued (see, mutatis mutandis, Roldan Texeira, (dec.), cited above). 215. Accordingly, there has not been a violation of Article 2 of Protocol No. 4 to the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 216. The applicants further complained that the circumstances created by the judicial authorities, the CTU and the children services amounted to inhuman and degrading treatment, particularly as a result of the period of isolation in San Marino. Indeed, as a result, the second applicant suffered psychological distress. Moreover, the first applicant had been pressured by these entities into withdrawing her complaints against Mr X., which were eventually archived. They cited Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 217. The Court reiterates that, to fall within the scope of Article 3, the treatment in question must attain a minimum level of severity. The assessment of that minimum level is, in the nature of things, relative, and depends on all the circumstances of the case, and in particular on the nature and context of the treatment, how long it lasted, the physical and mental effects and, in some cases, on the sex, age and state of health of the person concerned. On this basis, it is not sufficient for the treatment to include some unpleasant aspects (see Bove v. Italy, (dec.) no. 30595/02, 18 November 2004). 218. The Court considers that, while the proceedings and related events have surely been a source of stress and anxiety to the applicants in the light of the circumstances of the present case, it cannot be said that they have reached the threshold proscribed by Article 3. 219. It follows that this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 220. Lastly, the applicants complained under Article 1 of Protocol No. 1, about the amount of maintenance awarded by the order of 18 May 2007, which erroneously considered that the first applicant did not need to pay rent. 221. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it can only deal with the matter if the relevant complaint is raised within a period of six months from the date on which the final decision was taken (see Debono v. Malta, (dec.) no. 34539/02, 3 May 2005). In the present case the final decision in relation to this complaint was delivered on 18 May 2007 and was therefore taken more than six months before the lodging of this application with the Court on 7 July 2008. 222. It follows that this complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. In general, the domestic courts had conducted the proceedings with due diligence; the measure in question pursued the legitimate aim of protecting the rights and freedoms of the child and his parents; the child’s best interests and the family’s particular situation had been taken into account; and a change of award had been envisaged if necessary.