Although it is certainly nothing new, we seem to be going through a spate of European Court of Human Rights (ECHR) cases in which parents claim that the failure of the authorities to enforce children orders amounts to a breach of their right to respect for family life under Article 8 of the European Convention on Human Rights. For example in June last year I wrote about a case in which a father succeeded with a claim that the Polish authorities had breached Article 8 by failing to take effective steps to enforce his right to have contact with his daughter, and last September I wrote about a case in which a mother failed to prove that her right to family life had been breached by the failure of the Serbian authorities to enforce custody and access orders.
The latest example of this trend is the case Wdowiak v Poland. This concerned the issue of a father’s contact with his son. The facts were that the boy was born in December 2002. The parents separated in the following year and in 2005 the father made an application for contact. There then followed a fairly complex history of litigation between the parents, and proceedings are still pending. I will describe briefly some of the details in a moment, but for now suffice it to say that the proceedings did not succeed in securing a lasting relationship between the father and the son, and there has been no contact between them since November 2013.
The father blamed the situation upon the Polish authorities, who he claimed had breached his Article 8 rights by failing to take effective steps to enforce his right to have contact with his son.
The ECHR set out the responsibility of the state in these cases as follows:
“The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not … absolute. The key consideration is whether those authorities have taken all necessary steps to facilitate contact such as can reasonably be demanded in the special circumstances of each case”
So, had the Polish authorities taken all reasonable steps here? The ECHR went through the actions of the authorities in chronological order:
- The courts reacted to the father’s original application and in December 2005 accepted an agreement between the parties detailing when the father was able to see his son. In 2006 meetings between the father and his son took place, albeit with minor disruptions.
- From January 2007 the father was deprived of any contact with his son for a year, as the child had been taken by his mother to Germany, not returning until January 2008. Accordingly, the situation in 2007 was not attributable to the Polish authorities.
- Because the father’s contact had been obstructed by the mother at the beginning of 2008, the domestic courts secured a further contact agreement between the parents, in April 2008. They also ordered that if the mother failed to allow the father to meet his son on 5 April 2008 she would be liable to pay a fine. The settlement, which was amended on 29 September 2009, provided the father with contact, and for almost four years he made no complaints about visits not taking place.
- In February 2012 the father reported that a conflict had arisen between him and his son, and that regular visits had stopped. At the same time the mother informed the authorities that the boy no longer wished to see his father. Both parties asked the court to modify the contact arrangements. The court, after seeking the opinion of experts, modified the contact arrangements, first on 19 February and then on 27 June 2013. The boy was to see his father in public places only and in the presence of his mother and a guardian. In 2014 and 2015 further mediation and family counselling was ordered by the courts.
- On 19 February 2013 the court allowed the father’s request to threaten the mother with a penalty payment to the father each time a visit did not take place. However, no penalty was ever paid by the mother, apparently as the father stopped trying to see his son in November 2013, owing to their conflict, and he never applied to enforce that decision.
In the circumstances the ECHR found that the difficulties in enforcing the contact arrangements were not due to any failure on the part of the authorities, but rather were largely due to the mother’s reluctance to allow contact, and the child’s open hostility towards his father and his refusal to see him. The national authorities took all the steps necessary and which could reasonably be required of them in order to enforce the father’s right to have contact with his son, and accordingly there had been no violation of Article 8.
The full report of Wdowiak v Poland can be found here.