A German father denied contact with his son for several years has been awarded damages by the European Court of Human Rights.
The man lived in Cologne. His son, D’, was born in 1998, but he and the boy’s mother separated the following year. The boy, now 18, has lived with his mother ever since.
The estranged parents argued over residence and contact rights throughout D’s childhood. He was granted two visits a week not long after the couple’s initial separation but this was modified several times over the ensuing years. In 2001 the father applied for more time, and also argued that the mother should be fined after contact stopped. A psychologist confirmed that seeing his father would be in D’s best interests and the parents then came to a new agreement regarding visits
But before long the father was back in court claiming that the mother had not been co-operating with the agreed schedule of visits and should be fined. In March the following year the local family court agreed, warning the mother she faced a fine of 2,000 Euros if she didn’t allow access.
Later that year, the parents were again assessed by a “court-appointed expert”. She said the boy enjoyed seeing his father but that both parents had been using him “in pursuit of their own interests” and communication had broken down. Consequently joint parenting was impossible and the status quo should be maintained: D should live with his mother but see his father regularly. The Court appointed an Umgamgspfleger – a contact supervisor – to help ensure access for the father.
Meanwhile the mother’s application for contact between father and son to cease altogether was rejected, as was her appeal. She had, said the judges, deliberately interfered with the father’s visits and her custody of D would be reconsidered if problems continued.
But they did continue and the mother was again threatened with a fine. In December 2003, however, the Cologne Court of Appeal quashed a ruling that again declared that the mother must allow the father to see D. Judges noted that the mother had said the child showed “mental abnormalities” after seeing his father. These claims were backed up by a paediatrician who said the problems were caused by the ongoing conflict between the parents. Therefore, the Court concluded, “enforcement of the [father]’s right to contact would be harmful to the child.”
In 2005, the mother again applied for all contact between the father and D to be suspended. D, who was then approaching seventh birthday, said he didn’t wish to see his father anymore.
Undeterred, the man applied for contact with D to be renewed. The family court again consulted a paediatrician. She concluded that:
“…the child had been deeply traumatised by being separated from his mother for forced contact with the applicant from the age of ten months, and by the increasingly hostile relationship between his parents. In 2003, contact with his father was followed by extremely aggressive outbursts. D. was in need of psychotherapy, which could not yet be initiated because of his young age and lack of maturity.”
The court ordered three assessment visits between father and son, under the supervision of psychologists, but these did not take place because the mother’s “counsel had informed them that both Ms K. and the child had been advised not to talk to the [father] on medical grounds.”
The father received support from the director of D’s Kindergarten, who told the family court that seeing his father had been beneficial
“…because the child lived in a rigid world out of touch with reality, highly controlled by his mother and without being able to freely choose his playmates or games. The child reacted to this excessive control in a violent manner. To strengthen the development of the child’s own personality and to let the child experience the real world, a counterbalancing authority figure outside of the child’s mother’s family was greatly needed.”
The father applied for full custody of D. The court a new scheduled of visits and ordered the mother not to interfere or try to influence him against the father. The boy’s outbursts had been provoked by the mother, it ruled, and seeing his father was in the boy’s best interests. The mother would be fined if she did not cooperate.
But on the first of the scheduled visits, the boy refused to leave with his father.
During subsequent discussions, D insisted that he did not want to see his father and only wanted to be “left in peace”. A school teacher said the D needed a break from the wrangling between his parents and the father “lacked empathy”.
The following month the mother was fined 3,000 Euros for her failing to meet court-ordered obligations, but this was later overturned on appeal because new evidence suggested the mother was mentally unable to deal with her son seeing his father. She had diagnosed with post-traumatic disorder “manifesting itself in uncontrollable agitation patterns, palpitations, feelings of panic, trembling, nausea and feelings of helplessness and despair.”
The Family Court told the parents that renewed contact would be impossible for the time being. Instead the question of whether or not D should remain in the care of his mother at all should be considered first.
At the end of 2008, the Court ruled that all contact between the boy and his father should be suspended for three years.
A European Court of Human Rights explained that:
“[The German Family Court] considered that because of the massive and continuing conflict between the parents, the child would experience a serious conflict of loyalty if contact was enforced. This would seriously jeopardise his welfare. The court further considered that Ms K., because of her own stress disorder, which had been established by medical certificates, was not able to prepare the child for contact meetings with the applicant properly.”
The father appealed, arguing that the Court had relied on outdated evidence and failed to properly ascertain D’s wishes. This was dismissed. The ruling did acknowledge that “there was no indication that contact with the applicant would jeopardise the child’s welfare.” But the mother’s “obstructive attitude toward contact” would do it said.
Subsequent appeals also failed, “even though this decision meant that Ms K., who – for whatever reason – had wanted to prevent contact with the [father], had managed to attain her aim.
The father took his case to the Court of Human Rights, applying both on his own behalf and that of D. He argued that the German courts’ rulings had breached their rights to “private and family life”, as defined by Article 8 of the European Convention on Human Rights. In addition, his right to a “fair trial” under Article 6 had been breached due to unbalanced proceeding and the passage of an excessive amount of time he said. The father sought substantial damages for loss of income and stress and depression.
The father’s claim was partially successful. He had no standing to apply on behalf of D and his complaints about the alleged unfairness of the family court proceedings were inadmissible. However, his rights to a private and family life had been breached by the decision to suspend all contact for three years and by the general conduct of the court proceedings.
Therefore, the Court ruled, the German government must pay the father 10,000 Euros in non-pecuniary damages, with an additional 6,748 Euros in costs and expenses.
Read the ruling in full here.