Suspension of contact with father the right move, rules ECHR

Family|May 13th 2016

The exclusion of a German man from his daughter’s life was reasonable, the European Court of Human Rights (ECHR) has ruled.

In Buchleither v Germany, the couple in question had never married. They separated shortly after the birth of a child in 2003. Their daughter still lives with her mother and the father has no parental responsibility.

The parents have been arguing about his right to see his daughter  since not long after the birth. In April 2004, the father, who lives in the southwestern town of Rastatt, filed a request with the local family court and was granted supervised visits which continued until October. A fresh agreement was reached in December and further visits took place but the situation became increasingly strained, with one social services department refusing to continue working with the parents “due to the parties’ behaviour”. Later a child protection association also dropped out of the case due to the mother’s behaviour.

In October 2004, the man requested the imposition of a fine in order to enforce his contact rights. He repeated the request in May 2007. The mother responded with her own request – that contact be suspended for two years. The following year, a family court agreed to a suspension until the end of 2009. The father pursued an unsuccessful complaint regarding this decision through the courts.

At the end of the suspension, the father had been granted fortnightly visits but these never took place. The mother returned to court and was granted a further suspension of all contact between father and daughter.

He pursued his claim through the courts but the situation only grew worse. In 2011, a court suspended contact with his daughter indefinitely on the advice of a psychiatrist.

The latter claimed that “…a suspension of the applicant’s contact was, at the moment, the less damaging approach and therefore in the child’s best interest. Contact with the applicant as such was not found to be damaging, but the circumstances of the conflict rendered a different solution at the moment impossible.”

The father had agreed on mediation but the mother refused to participate.

This decision was upheld at the Court of Appeal. Judges there “considered… that contact had to be permanently suspended because ordering contact would affect the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that he had become a stranger to her.”

The daughter gave evidence in court, saying she did not want to see him. She appeared to be mature for her age and made it clear that she wanted her wishes to be respected and that would not be forced into seeing her father. She claimed to only have limited, bad memories of him. Her legal guardian reported that she had begun to cry and left the room when asked about her father.

The ECHR ruling noted that:

“The Court of Appeal considered that the child’s attitude had been influenced by the loyalty she felt towards her mother, who continuously talked negatively about the father. The child felt obliged to feel the same way as her mother. She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties. She saw rejecting her father as the only way to preserve at least her mother’s love.”

The Court of Appeal concluded that the daughter was capable of making a clear decision. Forcing her to see her father as the parents’ conflict continued could “seriously affect the child”.

The determined father than took his case to the European Court of Human Rights, arguing that indefinite suspension amounted to a breach of his right to private and family life, as defined by Article 8 of the European Convention on Human Rights.

The ECHR ruled, by a margin of four votes to three, that there had been a technical breach of Article 8, but the decisions which lay behind that had been based on the circumstances of the case and consideration for the child’s welfare, decisions which had not exceeded the authority of the German courts. Their rulings:

“…did not overstep the margin of appreciation afforded to the domestic courts in matters concerning a parent’s contact with his or her minor child, and can still be regarded as having been “necessary” in a democratic society.”

Read the ruling here.

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Comments(8)

  1. Harry says:

    Cases like these are exceptionally distressing, as it seems almost certain the child has been deliberately alienated by the mother against the father. Here both the psychiatric profession and the Courts are rewarding and hugely substantiating the abuse that has been perpetrated by the mother.

    The father is forced into putting forward his “rights”, when that is most probably not what is uppermost in his mind at all, but rather the exceptional importance for the child of having such a committed father in her life.

    This seems to be an extremely depressing theme within the psychological community – one where they see the experience of conflict as far worse than the deprivation of a parent.

    This simply is not true in most cases – the deprivation is likely to have far worse consequences in the long run.

    By taking this position, the psychological community simply put all the power in the hands of the most immature, least responsible, most confrontational party. All you have to do is fail to cooperate – and you get it all your own way.

    I’m sorry, but it is appalling and frankly disgusting behaviour by the so called ‘professionals” involved, who seem to have lost touch with this basic reality themselves…even as they throw around lots of big words to make themselves sound so clever.

    Not impressed. Not at all.

  2. Vincent McGovern says:

    The child is now 13 and apparently has only ever known parental conflict throughout her life. The mother refused to co parent or comply with Court orders and a useless child protection team allied to flaccid Judicial oversight encouraged her to continue emotionally abusing the child by portraying the father in a negative manner always. Pure parental alienation.

    The amount of times I see this is sickening. I know there are fathers who alienate children against their mothers and they have my greater contempt .

    I’m confident the tax payer funded quite a bit of this litigation. In the UK there are no public funds for therapy to help emotionally abused and alienated children. The above case brings shame upon the German family court system. I’m reminded of LJ Wall when he commented that in cases of intractable hostility there is nearly always an element of madness in one or both parents. Sadly the madness is encouraged by hopelessly inadequate Judicial process here.

    What’s worse is it encourages more of the same. And a quality post by Stowe Family Law.

  3. Luke says:

    I think Vincent and Harry are right – and in my view the sooner we leave the ECHR the better – they make too many crazy decisions and I don’t want England or any country that chooses to remain in the UK to be subject to them.

    • The Devil's Advocate/ Amazing Grace 2015 says:

      Unfortunately it is not the geographical location of this Court or level at which it functions. I might remind you that in England and Wales under current anachronistic legislation the same exists in County Family Courts. As a trained Samaritan one of our hub coordinators with psychological training for Amazing Grace we address such persons who come with concerns of these constantly, which is only a tip of the iceberg.

      It is the lack of effective and parity legislation which is at issue and NOT the current Courts.

  4. The Devil's Advocate/ Amazing Grace 2015 says:

    A child’s best interest is determined by those who understand a child’s needs and that has been identified by over 100 of the world’s most renowned and experienced child psychologists and psychiatrists. They concluded that in a situation, irrespective of the hostility of the parent who in this situation initiated such acts considered as being an alienating parent, who is incapable of balancing their psychology of this recognition, should lose custody of a child because in acting in this manner they are psychologically abusing tem and that is not in their best interest by acting in such a criminal manner.

    It seems that this credible realization that anti parental alienation is a legislation in both Brazil and Mexico, but not in less civilized nations of the EU.

    It is not the lack of ability of the parent to engage with responsibility in this case but the implacable hostility of the mother who has no right to use her possible psychosis, possibly brought upon by post partum hormonal dysfunction and dissociative incapability of understanding her responsibility to realise the needs of and to have the father parent in the life of their child. The fact that the father did not come into the child’s life until two years of age or more is not at issue; the UN Convention on Rights of the of the Child (Section 10.2 and 9.3 have been contravened. The lack of the mother to attend mediation is also concurrent to support a possible psychotic manifestation by investigation of a DSM-5 type psychosis. The resulting issue regarding the relationship of what is in the best interest of the child is to all intents and purpose highlighted the continuing abuse of said child and has nothing to do with its best interest. The Court is therefore now directly responsible in promoting the continued psychological, (in what some might see,) “rape” of this girl and will have to take responsibility for her health when older. The seemingly balanced father (who has no criminal conviction of child abuse) should have achieved full and primary custody until the mother has had relevant hormonal and psychiatric treatment and whom could re enter her daughters life when she was cured and at the direction of health and family counsellor professionals and for them to inform the Court. This is the role of the Court in a civilized society.

    This mother should be fortunate that she is a resident in Germany. If in Brazil of Mexico she would be incarcerated for her crime of parental alienation (and family alienation).

    We at Amazing Grace are not purporting the criminalisation of parents who enact parental alienation as we wish for families to fully understand their parental parity responsibilities. We want all children to have what the aforementioned consultants professed was in their best interests actioned and not fall into the anachronistic trap of using a child as a weapon of psychological abuse and likewise for all in child’s family not only in the first but second filial generation where responsible engagement is proactive.

    Thank you.

    Amazing Grace

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