CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 mars 2021

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display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD3D1BFC4 { width:23.4pt; display:inline-block } .s2D5FC4BF { width:199.75pt; display:inline-block } .sA2D507BD { width:182.48pt; display:inline-block }     FIRST SECTION CASE OF I.S. AND OTHERS v. MALTA (Application no. 9410/20)             JUDGMENT   STRASBOURG 18 March 2021     This judgment is final but it may be subject to editorial revision. In the case of I.S. and Others v. Malta, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Alena Poláčková, President,   Péter Paczolay,   Gilberto Felici, judges, and Attila Teplán, Acting Deputy Section Registrar, Having regard to: the application (no.   9410/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Maltese nationals, Mr I.S. in his own name and on behalf of his four children (“the applicants”), on 13 February 2020; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Articles 6, 8 and 13 of the Convention and to declare inadmissible the remainder of the application; the decision not to have the applicants’ names disclosed; the decision to give priority to the application (Rule 41 of the Rules of Court); the decision that the first applicant, a lawyer by profession, be allowed to act as legal representative (Article   36 §   2); the parties’ observations; Having deliberated in private on 16 February 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns complaints under Articles 6, 8 and 13 in relation to the unenforced contact orders in favour of the applicants, and the suspension of such contact. THE FACTS 2.     The applicants were born in 1978, 2007, 2010, 2013, and 2014 respectively and live in Marsaskala. 3.     The Government were represented by their Agent, Dr V. Buttigieg, then State Advocate, and later by their Agents, Dr C. Soler, State Advocate and Dr J. Vella, Advocate at the Office of the State Advocate. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUSMTANCES OF THE CASE Background to the case 5.     In or around 2016 the first applicant and his wife’s marriage broke down. At the time their children were one, three, five and nine years of age. The first applicant left the matrimonial home in November 2016 after consensual separation proved elusive. At the time he had three hours of contact a week with his children, in the presence of his wife at the matrimonial home. Civil Proceedings 6.     In April 2017 the first applicant filed for mediation (a compulsory step prior to separation) with the mediation section of the Civil Court (Family Section) (hereinafter the ‘Family Court’). Care and custody 7.     On 31 May 2017 the Family Court granted the parents joint care and custody, residence with the mother, access to the father as previously decreed (see paragraphs 12 and 13 below) and ordered the first applicant to pay maintenance for the four children. 8.     On 7 July 2017 the first applicant and his wife initiated separation proceedings, after unsuccessful mediation. He requested that care and custody be exercised jointly, and that access be decided in the best interests of the children. 9 .     On 28 August 2018 the first applicant noting the behaviour of the mother, confirmed by the relevant expert reports, asked the Family Court to grant him custody and that the children live with him and the mother be given access rights. As an alternative, he asked the Family Court to issue a care order (with access rights to the parents) to enable the children to obtain the required care. He further asked the Family Court to hear the children only after they had gone through therapy, as they had been “brainwashed” by their mother. The mother objected on 6 November 2018 and on 7   November 2018 a children’s advocate was appointed to speak to the children and relate their views to the court. No decision appears to have been taken on the latter request and it doesn’t appear that a child advocate met the children. 10 .     Following the report by Aġenzija Apoġġ (a social services organisation - hereinafter ‘AA’) of 10 September 2019 (see paragraph   47 below), in the light of the deteriorating mental health of the children and the emotional abuse they were suffering, on 26 September 2019 the first applicant again asked the Family Court to grant him care and custody, which could take effect with the help of AA. The mother made submissions in reply objecting. She considered that the best solution would be for her to have sole care and custody and claimed that the children were suffering from a trauma due to their father whom the children did not want to see, and which caused their urinary problems (see paragraph 46 below). By a decision of 10 October 2019 the first applicant’s request was refused “for some of the reasons set out in the reply”. Access rights and contact 11.     In the meantime, while the parents had joint custody, as appears to be the case to date, various decisions were taken in relation to the first applicant’s access rights. 12 .     Following the first applicant’s request, on 10 May 2017, the Family Court granted him access (contact) to his children, supervised by AA, in the absence of any other persons, which was set for Wednesdays between 17.00   and 19.00 and Saturdays between 11.00 and 14.00. A children’s advocate was appointed for the minors – however he only met them for a brief ten-minute meeting in October 2017. 13 .     On 30 May 2017 the Family Court rejected the mother’s request to be present during the father’s contact considering that her presence would be detrimental to the children. It noted that no access had actually taken place as it was impeded by the mother whose actions constituted contempt of court and any further action in this regard was being reserved. Bearing in mind that it was exam time in schools, the court altered the decree of 10   May 2017 ordering that the contact planned for Wednesdays was to start as of 1 July 2017. During these visits the mother and other family members were to keep a distance of more than 500 metres and were not to have any interaction with the children. The court warned the mother that any inappropriate behaviour by the children during the visits would not be tolerated and ordered that she should bring the children to AA half an hour before the visit and to immediately leave the venue. It decreed the mediation between the parties closed and authorised them to proceed with separation proceedings. 14.     On 31 May 2017, the children’s access to the father was confirmed as previously decreed (see previous paragraph). 15 .     On 31 August 2017, following a request by the Family Court, AA drew up a report recommending that the father’s access to the two elder children be suspended since they created an obstacle to the relationship between the father and the two younger children. It however recommended that the two elder children attend therapy sessions with their father and that his access to the two younger children be granted, twice a week for two hours, in the father’s residence, without supervision. It also recommended that the mother cooperate with the social workers to enable a relationship of trust to be established. In their report it was noted that the children were aware of the judicial proceedings and that they argued with their father because he didn’t give them enough maintenance. It was also noted that the mother had complained about the social services and had denied any responsibility for the children’s behaviour. 16 .     On 5 October 2017 AA drew up a report on the status of the relationship between the parents and the children. According to the report the elder children did not want to attend the contact sessions and they were being aggressive towards their father and the social workers. It appeared that their mother had been inciting the children’s negativity towards their father, to the extent that they had become her accomplices and were lying about their father (such as injuring themselves and then blaming their father for such injuries, despite the social workers having witnessed the scene). In view of the emotional damage being suffered by the children, the contact was stopped. The report recommended that the parents attend therapy to help their children as well as participate in parenting skills classes. 17 .     On 22 November 2017 the Family Court ordered the expert psychologist (CS) to give the case priority and to report on any progress in relations between the minors and the first applicant. It ordered that the first applicant start to again have access to the two younger children once a week for two hours, under supervision by AA, and twice a week over the Christmas vacation period. 18.     On 11 January 2018 CS was heard and the Family Court appointed a clinical psychologist (SVC) to assess the parties with the assistance of CS. However, it was ultimately CS who delivered a report in August 2018. 19 .     On 14 March 2018 the first applicant filed an application with the court complaining that the mother had been orchestrating every possible situation to alienate the children from their father, to the extent that they wished him dead. He requested, inter alia , that contact with the two younger children be unsupervised and that the court order supervised contact with the two elder sons. The mother objected. On 10 April 2018 the Family Court accepted the first applicant’s requests: to grant him weekly unsupervised access to the two younger children and supervised access to the two older children (each one on alternate weeks); that access to the children by the maternal family (who were contributing to the problems between the children and their father) be limited; that any therapy session be in addition and not in substitution of the family sessions that the first applicant had with the children, and that sessions with the elder children start immediately to avoid any further waste of time. It further considered that it did not have the competence to order the mother to stop, inter alia , sending letters threatening criminal proceedings every time he phoned the children. The mother challenged this decision and by a decree of 1   May 2018 the court rejected her challenge. 20.     According to the first applicant, the only time supervised contact occurred, on 5 May 2018, the outcome was excellent. 21 .     On 24 May 2018, the first applicant filed an application with the Family Court complaining that he had only had access once in the six weeks since the court order (as he had been abroad twice, the children had been sick twice and the remaining times due to obstruction by the mother). He requested i) authorisation to request AA’s assistance to facilitate handover during access to the two minor children; ii) that such access be doubled during school holidays iii) that it be replaced when not successful; iv) that the first applicant be allowed to speak to the four children via telephone or video/messaging services; v) that it authorise access to the two elder children via the help of AA; vi) that it allow him to choose a psychologist to immediately start therapy with the elder children; and vii) to order a clinical assessment so that any necessary therapy is undertaken. The mother objected on 6 June 2018. 22 .     In the meantime, on 28 May 2018 the mother requested the Family Court to revoke the first applicant’s access rights. The latter objected on 13   June 2018. 23 .     On 9 June 2018 the first applicant had contact with one of the younger children with the assistance of the police who arrested their mother. 24.     On 12 June 2018 a psychological expert was appointed to examine both parents. According to her report, the first applicant was anxious and uncertain about the future of his family. During the examination he had been reserved, though he wanted to show that he was doing what had been asked of him. He was generally passive and dependent on others to solve problems. He was rational and accepted what was going on in the family but was hopeful that the situation would improve through professional help; however, he did not feel responsible for the difficulties affecting his family. According to the same report the mother was rational, expressed little emotions, was reserved and also aimed at achieving a positive result in the test. She attempted to show more confidence than she actually had and was a little artificial in her interactions. It is possible that she felt better taking care of the children on her own as opposed to sharing such a responsibility with someone else who may challenge her opinion or identity. She was educated and intelligent and could get along with people as long as they agreed with her; she had difficulty accepting other opinions and while stating that her children were free to have their own opinions about their father, she herself said things which showed the influence she had on them and the discipline she expected of them. 25 .     By a decree of 12 June 2018, having seen the AA report, the court suspended contact and ordered that the [elder] children start therapy. By another decree of the same date, in reply to the application of 24 May (see paragraph 21 above), the court accepted the first applicant’s request that AA use all available means and give effect to the professional recommendations made to ensure access to the older children and address their lack of cooperation; and that the first applicant be authorised to choose his own therapist if the mother remained uncooperative, to enable therapy between him and the elder children to start without further delay. 26 .     In reply to the mother’s application of 28 May 2018 (see paragraph   22 above) on 14 June 2018 the court confirmed its decree of 12   June 2018 suspending contact. 27 .     On 18 June 2018 the first applicant filed another request asking the Family Court to authorise AA to facilitate the handover of the younger children; that access to them be doubled over the summer holiday period; that if access to them (via contact visits) was not possible for various reasons (including an unsuccessful handover) that another day be convened in replacement, and that he be allowed to communicate with the four children by telephone or skype twice a week. The mother objected insisting that the children did not want to see their father. Another report by AA was drawn up on 18 July 2018. By a decree of 19 July 2018, having seen the report from AA, the court ordered the mother to prepare the younger children for their contact visits with their father, that handover take place within the AA facilities and that contact be held on specified dates and times. It rejected the request for oral communication with the four children. 28 .     In the meantime on 18 July 2018 the first applicant filed an application complaining that contact had still not taken place due to lack of cooperation from the mother and despite all the court orders, he thus asked the Family Court to intervene, setting out four pleas. The mother objected asking the court to stop all access to all the children, claiming that they were terrified of their father. By a decree of 3 August 2018 the Family Court granted the applicant’s first and fourth plea, namely, his request to have access to his younger children as established in the decree of 10 April 2018 (see paragraph 19 above), and that AA affect spot checks so that the court could be sure that everything being alleged by the mother was untruthful. It postponed its decision on the other two pleas (concerning access to the elder children and police assistance to escort the first applicant in picking up the children and to enforce the contact order) until the parties were examined by a psychologist. A further decree was issued on 17 August 2018, where on the basis of the report of the psychologist CS dated 13 August 2018, the Family Court upheld these two requests. 29 .     On 2 November 2018 a further request was made by the first applicant. A decree was issued on 20 November 2018 by which the court noted that so many requests had been lodged in these proceedings that it was difficult to know the most recent mental state of the children, it thus ordered that the children be heard by CS who would later report to the court. This order was never implemented. 30 .     On 23 November 2018 the first applicant filed a further application asking the Family Court to take action against the mother who continued to impede contact; to vary the conditions established by the decree of 10   April 2018 (see paragraph 19 above) in relation to the younger children and to order that the supervised contact with the elder children take place at their school with the help of AA. The mother objected. On 28 November 2018 the first applicant asked the Family Court to hear the children and the parents before the Christmas break. The first applicant’s request was rejected on 15 December 2018 in view of the decree issued in the meantime on 6 December 2018. 31 .     By a decree of 6 December 2018, after having heard the three elder children in camera (without the first applicant having been informed), having regard to the best interests of the children, which it underlined, it revoked any previous decrees granting the first applicant access rights and suspended all contact, unless the children wished otherwise, until 6   June 2019 (when the court would hear the children again). The Family Court took note of the multiple requests lodged by the applicant for access to his children, as well as his request to issue a care order (see paragraph   9 above); the reports concerning access; that no effective access was taking place due to the children’s unwillingness; and the thoughts and wishes of the children as expressed to the court in its chamber. 32 .     On 15 January 2019 the first applicant challenged that decision and asked the Family Court to give him a copy of the children’s testimony. He also asked that the children be supervised by AA which was to recommend the relevant path and therapy to improve the child-father relationship. The mother objected noting that ever since the decision of 6 December 2018 (see paragraph 31 above), when contact had been stopped, the children were doing extremely well in all fields of life and no longer suffered the fear they had each time they were to see their father. She also considered that AA should not interfere in their lives. 33 .     AA also made submissions, noting that the suspension of access rights would worsen the situation, further distancing the children from their father and aggravating their negative impression of him. It further noted that in its professional opinion, in the present case there had been an alienation of one of the parents and the lack of any access rights for the father would lead to a complete alienation. It thus recommended that the minors attend individual therapy as well as family therapy with their father and that the parents start intensive psychological/psychiatric therapy. 34 .     By a decree of 29 January 2019, the Family Court noted that the children had only been “heard” by the court, but they had not “testified” thus it was not possible to accept the first applicant’s request to have a copy of their statements. It postponed its reply to the other requests until after the parties commented on the AA’s report, submitted on the same day. 35.     The first applicant submitted his agreement with the conclusions of the report and his wish that AA supervise the parties and the necessary therapy/treatment, as well as any future contact sessions. 36 .     On 15 February 2019 the Family Court requested an expert (FC) to review all the previous reports concerning contact submitted in the proceedings and to inform the court about whether the children could benefit from therapy and contact with their father. Having heard the parents and examined the two report by the psychologist (CS), the reports from AA and the two reports issued by the play therapist concerning the two elder children, the expert recommended a further intervention with the younger children via a temporary change of residence (for 90 days), that is with the father, while the necessary interventions were undertaken (as practiced in England in cases of severe parental alienation). 37 .     The Family Court considered that 90 days was too long but accepted to put in place a 10-day change of residence and requested the expert to draw up an action plan to this effect. The latter was presented to the court on 10   April 2019. It established that the measure should take place from 17 to 26   May 2019. The mother was asked to be cooperative and prepare the children for the measure and the father was to attend psychological sessions to prepare for the measure. The two children were to be seen by the psychologist at least twice individually, and, together with their father, they were to attend other sessions (in her office and in the father’s place of residence), before the measure was put into place. Arrangements with the school, which all four children attended, were also to be made. A report would then be drawn up, including an assessment of the mother’s will to assist such access. This plan never came into effect. 38 .     On 11   April 2019 the Family Court issued a decree where it requested the parties to comment on the psychologist’s report. According to the report, the case of the four siblings was one of “pathological alignment with the mother. The created behaviours, as a result of the enmeshment existing between the children and the mother, instigated responses from the father which in turn contributed to the anxiety of the children. Moreover, the issues about the violence, which is alleged to have happened in the home between the parents in the presence of the children, is not entirely straightforward and this information is somewhat withheld. Therefore, it can be concluded that this case is a mixed combination of alienation and estrangement”. The report recommended an adapted (not generic) therapeutic intervention, namely a twelve-week programme where the two expert psychologists, to be appointed by the court, would complete an assessment and then an intervention. It noted that Parental Alienation was acknowledged as a form of child abuse which required necessary treatment to protect the children from harm. In many cases they should be removed from the care of the parent who is the cause of harm. However, in cases where there was estrangement, the reunification with the alienated parent could only take place when the children indicate to the psychologist that less divisive behaviours are being manifested between the aligned and the alienated parent. He considered that at this point the only intervention which could work was the twelve-week programme. 39 .     On 24 April 2019 the first applicant submitted to the court that he agreed with the recommendations of the psychologist. The mother objected as she considered that the psychologist was detached from reality and she complained about the proceedings instituted by the first applicant before the constitutional jurisdictions (see paragraph 51 et sequi . below). She noted that she would not accept anything which might be potentially harmful to her children and warned the Family Court that should the situation change to the detriment of the children she would publish her story since she was ready to do anything for her children. 40 .     By a decree of 6 May 2019, noting that the interim decree of 16   April 2019 of the constitutional jurisdictions (granting access rights to the father in respect of the youngest child, see paragraph 54 below) was contrary to the Family Court’s decree of 11 April 2019, and that the latter court’s work had been stultified, the Family Court held that the parties were obliged to follow the interim decree of 16 April 2019. 41.     By a decree of 23 March 2019, amended by a decree of 26   June 2019, the court accepted the mother’s request to travel abroad with the children, despite their father’s objections. 42.     On 10 May 2019 the first applicant submitted to the Family Court that the interim decree of the constitutional jurisdiction only related to the youngest child and therefore it was for the Family Court to proceed on the recommendations of the psychologist and establish a plan to address the parental alienation and find a solution with respect to the three other children and the father’s contact with them. He asked the Family Court to revoke its order of 6 May 2019. The mother objected. The court reserved its decision to a further date, after the hearing to be held on 1 August 2019. 43 .     Further requests and objections were lodged by the parties. By a decree of 21 June 2019, the Family Court considered that it could not change the orders given by the constitutional jurisdiction which was to hear a report from BC, a clinical psychologist, concerning contact with the minors. Thus, awaiting that outcome, the court rejected the requests. 44.     On 24 June 2019 the first applicant lodged a further request, based on the most recent reports, asking the Family Court to remove the children from their mother’s care temporarily in order for them to undertake the relevant therapy to counteract the parental alienation, and asked the court to set up a plan for contact and reunification with him. 45 .     On 1 August 2019 the Family Court heard two experts, BC and FC, and upheld the mother’s objection to BC. Thus, another expert (AG) was appointed to determine whether there had been parental alienation and parental estrangement from the parents or the grandparents, as stated in the report drawn up by BC. In order to eventually enable contact to resume, AG was asked to provide the relevant therapy to both parents individually, and to the children. The children were not re-heard. The court further ordered weekly supervised contact with the two youngest children and that BC and AG prepare the children for the upcoming holiday travel abroad with their father. It also ordered that the children resume football practice immediately without the parents’ obstructions, that they be accompanied solely by their mother (no other relatives),that their father should not be present for the time being and that the children follow catechism lessons in centre X (despite objections in relation to the fact that one of the mother’s relatives was involved in this centre). 46 .     AA submitted its report to the court on 4 September 2019. It informed the court that contact had not been successful. Indeed, supervised access started weekly as of 22 August 2019 with the two younger children for two and a half hours in the AA premises. However, while none of the children cried, at both visits the children refused to enter the visiting room where the contact with their father was due to take place and remained in the reception area next to their mother for the duration of the visit. The report also stated that on the second visit, having refused to use the toilet at the premises and their mother having been uncooperative, one of the children urinated in the reception area and the other one outside the AA premises. The mother explained that the children had a phobia for bathrooms, a problem which occurred even at home. AA thus recommended that the mother accompany the children to the visiting room and then leave the premises. 47 .     AA also submitted an explanatory note to the court on 10 September 2019 (see paragraph 10 above) in reply to the accusations made against its social workers and certain submissions made by the mother which they deemed untruthful. 48 .     On 22 November 2019 the first applicant requested the court to grant increased access to the four children over the Christmas holidays (the younger ones and the older ones on different days). The mother objected considering access should stop altogether not increase, and that in any event separating the children over Christmas day was counterproductive to the family’s well-being, moreover the first applicant had threatened via email to leave the country definitively. On 6 December 2019 the first applicant’s request was refused “for some of the reasons set out in the reply”. 49.     No contact took place over the holidays, and the court took no further action. On 9 January 2020 the Family Court accepted the mother’s request to appoint VB as a clinical psychologist with the same objectives for which BC had been appointed by decree of 1 August 2019. On 28   January 2020 the case was adjourned until April 2020. 50.     In the above proceedings at least four hearings were adjourned because the judge was dealing with other urgent matters. Constitutional redress proceedings The application 51 .     In the meantime, not having seen his two elder children since September 2017 and his two younger children since May 2018, on an unspecified date in 2019 the first applicant in his own name and on behalf of his minor children instituted constitutional redress proceedings noting that despite the various decisions of the Family Court granting him access rights to his children, such contact had not been effective in practice due to the mother’s behaviour, and that access had to be suspended because the children had become violent with both the father and the social workers. He relied on Article 8 of the Convention arguing that the State had failed in its positive obligation to take all the necessary steps to reunite him with his children. In particular he noted that the Family Court was allowing the father to be totally alienated from his children who had been brainwashed by their mother - a situation which had not been tackled by the Family Court. Furthermore, the decision to suspend his access rights had been taken on the basis of the children’s testimony (who had been accompanied by their mother) the content of which was not known to the first applicant, neither had he been heard by that court. Relying on Article 6, he complained that the Family Court did not take any action to ensure the enforcement of his access rights; it had ignored his request of 28   August 2018; and it had heard the children despite being informed of their mental state. Moreover, the children had been heard without their testimony having been transcribed, or the father informed of its content, as a result of which the court suspended his rights without giving any reasons and contrary to the principle of equality of arms. 52.     The first applicant asked the court to issue an interim order: restoring access to his children, if necessary supervised by AA; to put on hold related civil and criminal cases pending the outcome of the constitutional complaint; and to hear AA in order to determine the best interest of the minor children. He also asked the court to find a violation of the above mentioned Articles and award compensation, to revoke the decision of 6   December 2018 (see paragraph 31 above) and give any other necessary remedy, including regular access to his children. 53.     By a decree of 26 February 2019, a children’s advocate was nominated to represent the children. The advocate considered that no submissions were required from him. The interim decision 54 .     By a decree of 16 April 2019, after hearing the first applicant and the mother who intervened in the proceedings, the Civil Court (First Hall) in its constitutional competence restored the first applicant’s access right in respect of the youngest child; contact was to take place for two hours per week, supervised by AA. 55.     The Civil Court (First Hall) in its constitutional competence noted that the Family Court had suddenly stopped access even to the youngest child (who had not been heard) leaving it up to the children to decide if contact was to resume and without providing any mechanism or framework to provide a follow-up of the children, or that supervised contact be granted in relation to the youngest child. Aware that it was not a third instance court it nonetheless noted that if contact was to be stopped this could cause irreparable damage and may cause permanent separation. While the Family Court had left the decision in the hands of the children, it was unlikely that they would change their minds when they had no contact whatsoever with their father and without them being monitored by relevant experts in the field of child psychology. It followed that a limited interim measure was called for. The Civil Court (First Hall) in its constitutional competence appointed BC to examine the parents and the other three children and to draw up a report for the court by 4 June 2019 in relation to the existence of parental alienation or any other reason as to why the elder children were resisting contact with their father, and to submit recommendations in relation to an action plan to restore access rights in the event that these were in the interests of the minors. The continuation of constitutional redress proceedings 56.     The Civil Court (First Hall) in its constitutional competence heard the elder children in May 2019. 57 .     According to the first applicant, on 20 June 2019 the court accepted the expert findings that there had been parental alienation and considered that it was now up to the Family Court to build upon the interim relief order. 58.     As the sitting judge had left the Maltese judiciary, the case was adjourned until 27 September 2019 when a new judge was to be appointed. 59.     On 31 October 2019 the parties and the Civil Court (First Hall) in its constitutional competence (with a new judge, X) agreed to hear the minor children only after the testimony of BC was heard. On 26 November 2019 and 9 January 2020, the case was adjourned as BC had not been notified and proceedings could not continue without his testimony. The case was adjourned until March 2020. 60.     In the meantime, domestic proceedings were initiated before the constitutional jurisdictions by a third party contesting the appointment of judge X to the Maltese judiciary. The constitutional jurisdictions in that case referred the matter, by way of preliminary reference, to the CJEU. 61.     The applicant feared that as a result of this challenge any eventual decision taken by X in his case could be later declared null and void. Criminal proceedings Against the mother 62 .     Since April 2018 the first applicant lodged more than thirty criminal complaints before the Court of Magistrates concerning the denied access by the mother. 63.     None of the complaints have been decided, as the hearings continue to be repeatedly adjourned. Against the father 64.     In 2019 an application was lodged with the Court of Magistrates by the mother against the first applicant for a delay in the payment of maintenance of more than fifteen days. Proceedings were withdrawn once maintenance was paid. Domestic proceedings pending the proceedings before this Court Before the Family Court 65 .     VB and VEF (a psychologist involved with the children) filed a note on 21 May 2020, whereby it was concluded that this was a case of moderate to severe parental alienation, which required a family based intervention plan, including all the nuclear family and other members of the family who may be contributing to the dynamics of the alienation. In particular the psychologist VEF noted that the children viewed their father in a negative light and where angry with him, they thought that he did not love them and considered him dangerous. The younger siblings had difficulties recollecting incidents from the past, indicating that they were influenced by their older siblings. VB who held five interventions with the first applicant and four with the mother stated that the parents had an accumulated anger towards each other and that the children were suffering from their conflict. The father was sad and frustrated, and the mother was concerned about the well-being of the children. VB considered that both parents would benefit from highly specialised support in dealing with the very delicate situation. It was noted that parental alienation intervention could take four different forms and where usually mandated by the court. These forms were i)   custody with the favoured parent with efforts to remedy the alienation; ii)   custody with the rejected parent; iii) placement apart from both parents; or iv) custody with the favoured parent and no scheduled contact with the rejected parent, nor court-ordered interventions. As there had been very little progress, the parents’ readiness to engage in therapy sessions was questioned. Hands-on parental skills during supervised visits (SAVs) were considered more beneficial. While the father asked for a plan which went beyond therapy, the psychologists considered that therapeutic interventions might take quite a long time, they thus asked the court for guidance as to how to proceed. 66.     Both parties filed submissions in reply to the report. No court decree had been issued by September 2020 (date of applicants’ observations). 67.     On 18 July 2020 the Family Court did not accept the first applicant’s request to allow M.S. to receive his First Holy Communion, in view of the conflict between his parents and the parental alienation. 68 .     On 28 July 2020 the Family Court rejected the request by the first applicant that the children reside with him, which had not been recommended by the expert – no other action was ordered. The first applicant challenged this decision and on 31 July 2020 the court requested the experts VB and VEF to suggest a plan on how to deal with this serious case of parental alienation, as opposed to them asking the court – that had no professional expertise or knowledge concerning the psychology of children suffering from serious parental alienation – to indicate a way forward as the latter had done (see paragraph 65 above). 69.     On 4 August 2020, the applicant made two requests for a reunification programme, including access to his two younger and two elder children respectively. 70 .     On 17 August 2020 the clinical psychologists filed another note, confirming the previous one, stating that complex psychological dynamics had accumulated over the years – each member of the family needed therapeutic support and both parents needed to take responsibility for the family dynamics. They recommended that a therapeutic intervention plan be determined on the basis of a family focused therapy approach, that supervised access visits be carried out with a specific therapeutic goal to build a relationship between the applicants, and that this be done by W (a private mental health clinic) where they would be followed by a team of professionals and that the children are taken to the visits by a person other than the mother. They noted that a temporary change of residence was the option that showed to be effective in overcoming severe alienation, and which may need to be considered once therapeutically focused visits start to take place. Various considerations had to be made and this option could be envisaged for the younger siblings, for the time being. However, should the court order a change in residence, this should be done gradually by increasing the number of supervised visits until daily contact had been established which would then enable a change of residence. 71.     The first applicant filed submissions, together with a variety of information about reunification programmes, but not the mother, and by September 2020 (date of applicants’ observations) no decision had yet been taken. Before the constitutional jurisdiction 72.     In 2020 the expert was heard, but no decision has yet been delivered, thus, in November 2020 (date of the Government’s observations) the proceedings before the first-instance constitutional jurisdiction were still pending. Recapitulation of visits and therapy 73.     In 2017, the applicants had seventeen successful visits together, the last being on 27 September 2017, after which the first applicant has not had contact with his two elder children. From that date, until 11   April 2018 the first applicant had eighteen successful visits but only with his two younger children. 74 .     As of 18 April 2018 until 21 November 2018, the first applicant was meant to have thirty-two access visits with either of his children of which only two were successful – on 5 May 2018 when he saw his two younger children and on 9 June 2018 the last time he saw E.S. 75.     Pursuant to the constitutional jurisdiction’s interim decree, between 25   April and 25 July 2019, he had ten scheduled visits with his younger son of which eight where successful, the visit of 11 July 2017 being the last time he saw him. 76 .     Following the Family Court’s decree of 1 August 2019 until September 2020, the first applicant had forty-one scheduled visits with his two younger sons none of which was successful (see paragraph 46 above). 77 .     It follows that the last time the first applicant had contact with the second and third applicants was September 2017, and the last time he had contact with the fourth and fifth applicants was June 2018 and July 2019 respectively. 78.     According to a report by AA of 2020, the visits were always difficult with the children refusing to have contact with their father and insulting him. The mother had not shown any cooperation in facilitating the visits. 79 .     A few therapy sessions with the psychologists took place between November 2019 and March 2020 leading to the reports mentioned above (see paragraphs 65 and 70 above). RELEVANT LEGAL FRAMEWORK 80.     Article 338 of the Criminal Code concerns, contraventions against public order, and its sub article ( ll ) reads as follows: “Every person is guilty of a contravention against public order, who - when ordered by a court or bound by contract to allow access to a child in his or her custody, refuses without just cause to give such access;” THE LAW Scope of the case 81.     While in his submissions the first applicant refers to the decree concerning care and custody of the children, and his effective involvement in the upbringing of the children, the Court notes that such a matter had not been raised in the application and was not communicated to the respondent Government. It thus falls outside the scope of this application which concerns the first applicant’s access rights and family reunification. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 82.     The applicants complained under Article 6 of the Convention that the principle of equality of arms had not been respected in the proceedings leading to the decision of 6 December 2018 denying them any contact; that proceedings before the Family Court were taking too long; and that they were being penalised in the civil proceedings because of their attempt to have their rights safeguarded by the constitutional jurisdictions. They further complained about the non-enforcement of the contact orders, and the lack of any action being taken by the courts of criminal jurisdiction despite the various complaints filed; as well as the legitimacy of the constitutional jurisdiction hearing his case. The applicants