Orders made in his absence breach father’s right to a fair hearing

Family | 19 Jan 2017 0

It is a basic and universal rule that all parties should be informed of court proceedings taken against them, and that they should also be given the right to be heard in those proceedings. However, what happens if the respondent to an application is not at their last known address?

This was the question in the recent European Court of Human Rights (ECHR) case Gakharia v Georgia. The facts in the case were that the parents began living together in 1999. Their daughter was born in 2000 and was raised mainly by her maternal grandmother in Georgia while both parents, whose relationship soon ended, left to work abroad.

In March 2008 the mother applied to the Tbilisi City Court for her daughter to be officially registered as resident at her address (the term ‘registered address’ appears throughout the judgment, although it is not exactly clear what it means – presumably, citizens in Georgia are required to register their address with the authorities). In May 2008 a summons was sent to the father at his registered address but it could not be served as the house was closed up and no one was living there. On 3 June the court ordered information concerning the proceedings to be published in a daily newspaper. Then on 24 June the court granted the mother’s application. The decision was taken in the absence of the father, whose whereabouts, according to the ruling, could not be established.

The mother then made another application, for the child to be issued with an international passport and leave the territory of Georgia without her father’s consent. The summons was sent twice to the father at the address he had registered. Again it was not delivered, the courier noting that the house was closed up. In December 2008 the court granted the mother’s application, stating that the father’s whereabouts were unknown and ordering that the information about the proceedings be published in a newspaper.

In June 2012 the father lodged a complaint with the Tbilisi City Court, seeking to have both decisions set aside. He stated that he had learnt about the decisions only in May 2012. He also explained that he had not been living in Georgia at the material time, a fact which the mother had well known. He claimed that the proceedings had been unfair as he had not been properly summoned to the hearings.

The father’s complaint was rejected, on the basis that he had been properly notified of the proceedings via the newspaper, in accordance with the applicable rules. He had been registered at the address where the summonses had been sent and therefore the court had been justified in using that address. The decision was upheld on appeal.

The father then applied to the ECHR, claiming that his right to a fair hearing and his right to respect for family life under Articles 6 and 8 of the European Convention on Human Rights had been breached.

The ECHR found that the father’s right to respect for family life had not been breached, as he had not exhausted the available domestic remedies, as is required before a complaint to the ECHR can be admissible. In particular, he could have applied to the domestic courts for the restoration of his parental rights by, inter alia, complaining about the loss of contact with his daughter. He could also have initiated custody proceedings.

As to the complaint that his right to a fair hearing had been breached, the ECHR found in the father’s favour. Whilst it was true that he should have notified the authorities of his change of address the court, although technically complying with the rules, had not made sufficient efforts to trace and serve him [deliver the court papers]. For example, the court file showed that the custody and guardianship authority, which represented the interests of the child in the proceedings, made its own attempts to contact the father. In conclusions submitted to the court, the authority noted that during its visit to the father’s registered address it had learnt from neighbours that he had sold the house in 2003 and left for Moscow. The court, however, made no effort whatsoever to check that information.

In any event, when the case was re-examined after the father made his complaint it was apparent that he had indeed been in Russia when the two decisions had been taken. It hence should have become obvious to the court that neither the summonses nor the decisions had reached the father. In those circumstances, the conclusion reached – that the summonses had been served on the father properly because the procedure set out in the rules had been followed  – had a disproportionate impact on the father’s right of access to court.

The ECHR ordered the State of Georgia to pay to the father damages in the sum of one thousand five hundred Euros.

The full judgment can be read here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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