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.