Failure to enforce contact breaches father’s human rights

Family|June 30th 2016

It is a common complaint amongst fathers that courts are slow and ineffective at enforcing contact orders. After all, you may as well not have an order at all if it cannot be properly enforced. Further, as we will see in a moment, delay in enforcing a contact order can have a serious effect upon the relationship between father and child, and therefore upon the type of contact that is appropriate. It can even mean that contact is no longer appropriate at all.

I should say that it can, of course, also be the mother who is seeking contact, but for the sake of this post I refer to the father as the parent who seeks contact.

These issues seem to be universal, although no doubt some courts and some jurisdictions are better than others. Whatever, the facts of the recent European Court of Human Rights (‘ECHR’) decision in Malec v Poland will be familiar to many.

The circumstances of the case are that the parents were married in 1997. Their daughter was born in 2004. The parents separated in 2008, when the father left the matrimonial home. Initially, arrangements for his contact with his daughter were agreed, but it seems that these broke down. He therefore applied for a contact order when he issued divorce proceedings in January 2009.

Eventually, in November 2010, the court made an interim contact order, providing for the father to have staying contact every second weekend and during the week, plus substantial contact during the holidays. However, less than a month after that order was made the father made his first complaint to the court that the mother had refused to comply with the order.

The subsequent history of the case is too complex to detail here. Suffice to say that matters deteriorated considerably, with contact becoming less frequent and the inevitable consequence that the father’s relationship with his daughter deteriorated, so that she no longer wished to have overnight contact. The contact order was varied to reflect this, but the problems persisted. The father made numerous attempts to enforce the contact orders, including, by his estimate, filing nearly fifty applications to impose fines on the mother for failure to comply with the contact orders.

None of the father’s efforts to enforce the contact orders were successful and, presumably exasperated by the failure of the court to see that its orders were complied with, the father made an application to the ECHR, alleging that the Polish authorities had breached his right to family life under Article 8 of the European Convention on Human Rights, by failing to take effective steps to enforce his right to have contact with his daughter.

The Polish Government submitted that the application was premature, as the father had not exhausted the remedies available to him under Polish law. However, having regard to the number of applications the father had made, the ECHR concluded that the father did everything that could reasonably be expected of him to exhaust the national channels of redress.

The ECHR noted that many of the difficulties in the case were caused by the lack of cooperation between the parents. However, it said, this is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. Rather, it imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child.

Having regard to the facts of the case, in particular the time that the court took to deal with the father’s applications, the ECHR concluded that the Polish authorities failed to make adequate and effective efforts to enforce the father’s parental rights and his right to contact with his child. Accordingly, there had been a violation of Article 8. The father was awarded damages of €7000, plus €5000 in respect of costs and expenses.

The full report of the case can be found here.

Photo by Spirit-Fire via Flickr

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Comments(8)

  1. Andy says:

    HURR,To the Father for persistence in his quest..In this case the a courts and you would think that you could trust them were slow un professional and cumbersome..
    This shows the costs and time wasting that has an effect with all concerned…
    Children are priority seem courts just sift and dispose applications hoping they would go away..
    I think not…

    • Daniel says:

      I’ve split my ex 12 years ago but have daughter which her mum did not let me see her for years. After 3 years a court order was received by her mum and finally i coult see my child… She is 13 years old and altough her mum was sending her to me over weekends so she can go out with different men…she brainwashed the child into saying that myself and my familly are the worsest… although we have spent all our time into giving her all the best education.. The child was coming over to our house ( living with mum and sister) to spy …told by her mother…Her mother asked the child to ask us for our house key, etc. She was on the phone every other hour while staying with us asking what do we have in the house….What a rubish women…and full of hate… We do hope that the day is near when they will regret everything they have done wrong not only to us fathers but to the child….

  2. Vincent McGovern says:

    Ahh yes, that good old chestnut, the father had not exhausted all remedies open to him. I had experience of this when assisting a German dad bring his petition to the Petitions Commission of European Parliament. In the UK the system is straight forward 95% of the time when enforcement on contact/parenting time is sought by a father. Delay, delay and more delay, Section 7 reports, Guardian Ad Litem from Cafcass or if removed after yet more delay NYAS, either way the Pontius Pilate hand wringing. Child does not now want to see the father, we cannot force the child to see the father, would not be in the child’s best interests etc, etc. Parental alienation and emotional abuse of the child heavily facilitated and promoted by all agencies including the usual rubber stamping of such by Judicial authority. Great credit must go to this Polish dad. Of course it will make zero difference in the UK because dads will be told, that was a different case. And the gravy train rolls on. Still, comforting to know that the wonderful phrase of convenience is ‘Welfare of the Child is Paramount.’

  3. Alistair Nunn says:

    Until lawyers are prevented from making huge amounts of money at the expense of fathers rights then there would appear to be no insentive to change the current system.

  4. Arkadiusz Zoltowski says:

    Same case of mine , except I won before the Geneva UN Human Rights Tribunal, case number CCPR2279/2013

  5. David Reabow says:

    For an interesting insight on how John Bolch has himself been part of the corrupt legal system that supports and chooses not to penalise mothers for abusing their child’s rights to a father, this makes an interesting read: familylore.co.uk/2008/11/sorry-but-i-cant-sign-this.html?m=1

  6. Steve says:

    Same as me, being told this is what’s best for the children but as the children so say don’t want to see or speak to me, then take it at their pace. Nothing to do with the mother has control of the phone, etc just breaks the order week after week and the court lets her without any questions

  7. yvie says:

    My son had a shared residence order for his two boys. Although there was no contact between the parents it seemed to work reasonably well. The boys seemed happy and had a good relationship with their father. His ex wife eventually re-married and the boys have a stepfather. However, at age 15 my eldest grandson broke off all contact with his father, He is now 18. The youngest boy continued to come as per the court order until Christmas, when he also broke off all contact with their father. The boys say they hate their father. One can only wonder how or why a previously good relationship crumbled to dust. My personal opinion is that my ex dil wanted to move on and for her new husband take over the role of father to the children. Because the courts take the wishes and feelings of the children into account, 13/14 years of age is the time when alienation can take place without censure from the courts. My son was hospitalised recently and neither of his children enquired about his health. Both boys have blocked him from telephoning and social media. I am not surprised my son’s health has suffered and worsened over the year and I am not sure how much damage has been done to my grandchildren. However, on the surface they seem to have forgotten their natural father and are happy with the status quo.

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