Failure to enforce a custody order is a breach of the right to family life by John Bolch

Children|Divorce|October 30th 2013

European Court of Human RightsIt’s every separated parent’s worst nightmare: the other parent takes your child without your consent and refuses to disclose the child’s whereabouts. In the European Court of Human Rights case Pakhomova v Russia, the mother has had to endure the nightmare for more than four years.

The mother, who lives in Russia, married her husband in 1997 and gave birth to their son in 2001. They separated in 2008 and the child remained with her. She issued divorce proceedings, and both parties sought custody of the child. On the 24th of February 2009, while those proceedings were still pending, the father collected their son from school, and the boy has not been seen since.

In March 2009 the Russian court granted the divorce and held that the child should live with the mother. In taking this decision the court considered, among other factors the warm and trusting relationship which existed between mother and child. The court established, on the other hand, that the child had an ambiguous relationship with his father, and expressed concern at the behaviour of the father. Knowing of the imminent proceedings, he had abducted the boy and kept him hidden ever since.

Following the judgment the woman asked the police to begin a search for the child. An alert with photographs of the child was sent to local offices of the Department of the Interior and to neighbouring regions. The media were notified. The father was brought to the police station and questioned there on several occasions. He confirmed that the child lived with him, but refused to divulge his whereabouts.

After a failed attempt to make the father to comply with the court order voluntarily, the mother applied to the Bailiffs’ Service to launch enforcement proceedings. They made various unsuccessful attempts to locate the father, but eventually suspended the proceedings.

The mother also attempted to have criminal proceedings brought against the father by the authorities, but this was also unsuccessful.

Meanwhile, in February 2012, courts declared that the father had abused his parental rights and acted against the interests of his son by preventing him from talking to his mother for over two years. It therefore decided to terminate his parental rights.

The woman therefore applied to the European Court of Human Rights (ECHR), claiming a breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘right to respect for private and family life’). The authorities had failed to enforce the judgment granting her custody of her son.

The ECHR reviewed the detail of the various attempts by the authorities to enforce the order and found their efforts to be lacking. It observed “with serious concern” that the judgment of March 2009 remained unenforced for an inordinate period of over four years, a “very large part of the child’s life, with all the consequences this might have for his physical and mental well-being”. It continued:

“Having regard to the foregoing, and without overlooking the difficulties created by the resistance of the child’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment concerning the applicant’s custody of her son.”

Accordingly, there had been a breach of Article 8. The applicant did not seek monetary compensation, but the ECHR held that the Russian Government “should take, as a matter of urgency, all appropriate measures to ensure respect for the applicant’s family life, duly taking into account the best interests of the child”.

Let us hope that they do, although for this mother and child it may already be too late.

Photo of the European Court of Human Rights by by CherryX via Wikipedia under a Creative Commons licence

John Bolch

 

 

 

 

John Bolch is a family law commentator

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(8)

  1. Paul says:

    So what’s new? Courts here breach Article 8 rights all the time when they fail to put a timely end to the behaviour of mothers who deny contact and allow cases to stretch on endlessly. It’s all abduction in essence, the differences being only a matter of degree.

  2. Anonymous says:

    I guess there would be no point in writing about how this affects dads 99 percent of the time, because for some reason this is just fine

  3. Luke says:

    Yes, to a lesser degree many women in the UK do this on a regular basis, the courts here don’t seem to get too concerned about it.

  4. George Christoforou says:

    Perhaps if the family courts behaved impartially and decided custody and access impartially, then this father would not have taken matters into his own hands.
    ww familylawhelp.info

  5. Yvie says:

    Perhaps if the law was 50/50 by default, the parent who wanted to move away should forfeit the 50% shared care.

  6. J says:

    I agree with everyone here, maybe we fathers need to take a case to ECHR to force the issue, I have long argued that the penalty for a breach of a contact order should be the same as for parental abduction as they amount to the same thing. Furthermore some including me have argued that its actually worse because it is arguable that the child would be likely more alienated and therefore suffer more harm by contact denial or intermittent contact than by complete removal.

  7. Anonymous says:

    J, the ECHR already receives several such applications; when they finally get around to handling them, after the children have long grown up, they usually fiddle with language a bit, label the applicant a pest, deny that such a great country could be responsible for human rights abuses, and throw out the case. You only get the human rights you can afford, and unless you belong to the right class/gender, and one or more industries are profiting from taking a human rights application seriously, the ECHR could not care less, or so it would appear.

  8. Billy Wright says:

    I agree entirely with Yvie – 50/50 should be enshrined in law.
    Fathers are abused in the system as a matter of routine.
    Family law in this country is a disgrace.
    The bias to mothers in the system feeds/encourages unreasonable behaviour.

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