This is really becoming a thing. There seems to be a constant stream of fathers going to the European Court of Human Rights (ECHR) complaining that their national authorities had breached their right to respect for family life under Article 8 of the European Convention on Human Rights, by failing to take effective steps to enforce their ‘right’ to contact with their children. I have myself written here previously about this phenomenon.
The latest example is Onodi v Hungary (these cases are not just confined to the authorities of one country – this seems to be a Europe-wide phenomenon). The facts of the case were as follows:
- The father married the mother in 1990, and they had one child, a daughter, who was born in 1994.
- The parents divorced in March 2006. They agreed that the daughter would reside with the mother and that the father would have regular contact with her. The agreement was approved by the court.
- The contact broke down in the summer of 2006, seemingly because in the mother’s view it was up to the child to decide whether she wanted to see her father.
- The father applied to the court to have the contact agreement enforced. In September 2006 the court ordered the mother to comply with the agreement. Thereafter, there was some contact, but the mother clearly did not always comply, as on “a number of occasions” she was fined by the court for failure to do so.
- In 2007 the mother applied to the court to alter the contact arrangements. The father made a cross-application seeking custody. In June 2008 the court reduced the amount of the father’s contact, holding that the previously agreed form of contact was unlikely to be implemented, and dismissed the father’s custody application.
- In November 2008 the court amended the contact arrangements.
- In 2009 the father failed to turn up at numerous scheduled contact meetings for months, for which he was fined.
- At a hearing in January 2010 the court established that since the court decision of November 2008, no contact had taken place between the father and his daughter and, despite a request by the father, the guardianship authority had taken no steps to implement the judgment, on the grounds that he had made no efforts to resolve the conflict with his daughter.
- In a final judgment of April 2010 the court made an order granting the father contact every other weekend, on the condition that the daughter, who was by then 16 years old, be allowed to visit him by herself.
- Meetings between the father and his daughter only took place sporadically in 2010 and did not happen at all in 2011, despite the father lodging numerous enforcement requests with the guardianship authority.
- In 2011 the father requested that the guardianship authority that had been dealing with the case be excluded from any further proceedings, for bias. In December 2011 a different guardianship authority was appointed to deal with any further proceedings concerning the enforcement of the father’s contact rights. It was also noted that at that point there were eight enforcement requests pending, the oldest dating back to January 2010.
- The father complained to the ECHR that the Hungarian authorities had failed to take effective steps to enforce his contact with his daughter, alleging a violation of Article 8. He said that his attempts to have regular and effective contact with his child had started in 2007, but those attempts had remained for the large part ineffective. He maintained that he had submitted more than sixty-two applications to the guardianship authorities requesting the enforcement of his contact rights. However, the domestic authorities had failed to apply the domestic law in a way which could have effectively secured his contact rights and they should have taken more steps to help him re-establish meaningful contact.
- The Government contended that the domestic courts had done everything in their power to have the decisions on contact enforced. They also maintained that the domestic authorities had had to strike a careful balance between the father’s undisputed right to have a connection with his child and the best interests of the child, who had refused any contact with him. They also maintained that the father’s behaviour, in particular his refusal to resolve certain conflicts during one of the visits and failure to turn up at several of the arranged appointments, had contributed to the hostility between him and his child and the inability of the domestic authorities to enforce the decisions on contact.
The ECHR found:
- That whilst it was true that “certain difficulties in achieving regular contact” could be attributed to the father, the father was initially constructive, but his behaviour only changed when he became frustrated by the hostility of his daughter and the lack of effort on the part of the authorities to enforce his contact with her. In these circumstances, the ECHR could not subscribe to the Government’s argument that the father’s own behaviour was a decisive factor for the non-enforcement of his contact rights by the domestic authorities.
- That the financial sanctions imposed on the mother were inadequate to improve the situation and overcome her lack of cooperation.
- That while the guardianship authorities were unable to enforce all aspects of the contact orders because of the mother’s lack of cooperation and subsequently the child’s negative attitude towards her father, they made no efforts to gradually re-establish the contact between them. On the contrary, the judgment of June 2008 restricting the father’s contact was based on the practical conclusion that the previous contact arrangements could not be implemented, thereby condoning the mother’s uncooperative behaviour and disregard for the previous agreement. In a similar vein, the further court proceedings and decisions appeared to focus on the practical arrangements for contact, which had not taken place for years, rather than on the support the parties would have needed to ensure that opportunities for maintaining the child’s relationship with the applicant were not lost in the future.
- Lastly, that it was also apparent from the case file that the domestic authorities failed to deal with the matter promptly, since a number of enforcement requests lodged by the father remained unprocessed for more than a year.
Having regard to these matters, the ECHR concluded that the Hungarian authorities failed to fulfil their positive obligations to duly protect the father’s right to respect for his family life, in violation of Article 8. The Hungarian Government was therefore ordered to pay to the father 6,000 Euros in damages, plus 1,900 Euros in respect of costs and expenses.
What can we take from this, and the other similar cases? Well, first of all obviously the ECHR provides fathers who feel that the authorities have failed them with some sort of remedy, albeit a pecuniary remedy only. Secondly, the cases indicate that the authorities should explore all avenues to try to make contact work. Thirdly, though, the cases surely demonstrate just how difficult it is for authorities everywhere to deal with intractable contact disputes. It seems that no one has come up with a solution. Perhaps that is because there simply isn’t a solution, although obviously we should not stop searching for one.
The full report of the case can be read here.