It is trite to say but resolving an intractable contact dispute is one of the hardest tasks of the family court. It is therefore quite right that the court should have at its disposal a full range of tools that it can use to deal with the matter and to further its ultimate aim of securing the welfare of the child. Sometimes the tool that it chooses to use can be a drastic course of action. However, as we will see, if the court does embark upon such a course then its decision to do so must be fully justified.
The facts in the recent European Court of Human Rights (ECHR) decision Moog v Germany are depressing in their familiarity. The case concerned a boy, ‘D’, born in 1998. His parents separated in the following year and D stayed with his mother, where he has remained. As the judgment states, since 1999 the parents have been in dispute over contact and custody (I won’t discuss the custody issue here, as the case is primarily about the issue of the father’s contact with D).
I couldn’t possibly go into all of the details of the complex history of what has happened in the years since 1999, but here are some of the salient points:
- In the early years the father did have some limited contact pursuant to a court order, but this did not always take place due, according to the father, to the non-cooperation of the mother. Enforcement action was taken against the mother, and in 2003 the family court ordered her to ensure the father’s right to contact, failing which she could be fined. The mother appealed and the appeal court quashed that decision, finding that D showed mental abnormalities after contact with his father, caused, according to a doctor, by the conflict between the parents. It was therefore considered that enforcement of the father’s right to contact would be harmful to D.
- In 2005 the mother applied to the court for the suspension of contact. The court heard testimony from D, who declared that he did not wish to see his father anymore.
- In 2006 the court received a report from D’s paediatrician, which stated that D “had been deeply traumatised by being separated from his mother for forced contact with the [father] from the age of ten months, and by the increasingly hostile relationship between his parents”.
- In 2007 the court made a further order for contact. In addition, the court ordered the mother to prepare D for contact, and to refrain from influencing D against his father. Just three months later the court fined the mother for failing to meet her obligations under the order.
- In June 2007 the paediatrician recommended family therapy in order to prepare contact between D and his father. D declared that he wanted to be left in peace and did not want to see his father.
- In February 2008 the appeal court quashed the decision to fine the mother, on the grounds that there were serious doubts as to whether she was able to cooperate in preparing D for contact, due to her suffering from a post-traumatic stress disorder. The court also held that it was unreasonable to act contrary to D’s wishes, and stated that it was preferable to initiate therapeutic measures.
- In December 2008 the family court decided to suspend the father’s contact until 31 of December 2011, considering that because of the “massive and continuing conflict between the parents” it would be contrary to D’s welfare to enforce contact. In view of this, and the mother’s stress disorder, it was decided that D’s well-being required the suspension of contact for three years, in order to allow D to undergo trauma therapy. The father appealed against this decision, but his appeal was rejected.
- The father then took his case to the ECHR. He complained that his right to family life under Article 8 of the European Convention on Human Rights had been breached by the family court’s failure to implement the 2007 contact order, by its decision to suspend his contact rights, and by its conduct of the contact proceedings.
The ECHR found in favour of the father on the second and third of those complaints. As to the decision to suspend contact, it found that that decision had not been justified. There was insufficient evidence to assess whether the suspension of contact would be in D’s best interests, there was no evidence that D needed time to respite and to undergo trauma therapy, and much of the evidence that the court relied upon was out of date. As to the conduct of the contact proceedings, the ECHR found that at several points the family court had been responsible for considerable delay in the proceedings, for example there was a five month period after the mother’s application in 2005 until it held a hearing.
Accordingly, The ECHR held that the father’s Article 8 rights had been breached, and ordered the payment to him of the sum of ten thousand euros in damages, plus costs.
The full report of Moog v Germany can be found here.