CEDH · CASELAW;CLIN;ENG — 16 juin 2016

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Greece - 74758/11 Judgment 16.6.2016 [Section I] Article 8 Positive obligations Article 8-1 Respect for family life Inadequacy of measures taken by State to secure father’s right of access to his children pursuant to court order: violation Facts – An interim court ruling of February 2011 awarded custody of two children to their mother and contact rights to the applicant, the children’s father. However, the applicant encountered difficulties in exercising his contact rights and was subsequently unable to have contact with his children at all. The penalties provided for in the decision in the event of failure to comply – custodial sentence or pecuniary penalty – did not deter the children’s mother from impeding the applicant’s attempts to fetch his children on the dates scheduled for his contact rights. Accordingly, the applicant complained of the failure on the part of the authorities to take action to enforce his contact rights and of the refusal of the various prosecutors to whom he had complained to let him have copies of the psychologists’ reports and the social inquiry reports. Law – Article 8: The prosecutor had not taken account of the fact that the applicant had not had contact with his children for several months and that the passage of that time without contact had already contributed and would certainly continue to contribute to the children’s attitude of rejection towards the applicant. No mediation or other non-confrontational approach had been put in place to help the applicant and his children re-establish their family relationship. The applicant lodged a number of claims and complaints before the court of first instance, but the proceedings were discontinued at the request of the applicant, who stated that he did not want to see a financial penalty, still less a custodial sentence, imposed on the mother of his children. The Court agreed that the above-mentioned judicial measures were not necessarily always appropriate to situations such as the one here. Accordingly, it would not draw adverse inferences from the fact that the applicant had decided not to pursue his various claims and complaints against the children’s mother. The use of measures involving, in cases concerning custody or contact rights, a deprivation of liberty of one of the parents had to be regarded as an exceptional measure and could only be implemented where alternative means had been used or explored. The authorities had failed in their duty to take speedy and practical measures with a view to encouraging the parties to cooperate better, while having regard to the best interests of the children which also consisted in not allowing a steady dilution or, worse, a breakdown in relations with their father. The authorities had failed to take any action to supervise the enforcement of the judgment scheduling the father’s contact. Apart from the social inquiry ordered by the prosecutor responsible for cases involving minors, at the applicant’s request in March 2011, and which took five months, no other measure had been implemented by the authorities. That inquiry and the five reports subsequently drawn up had not led to the implementation of any specific measure. The letter sent in September 2011 by the applicant to the public prosecutor at the Court of Cassation complaining about the inactivity of the prosecutor responsible for cases involving minors had not even received a reply. The authorities had therefore allowed a de facto situation to set in, thus disregarding the judgment of February 2011. Throughout that period the applicant had been deprived, as a result of his wife’s conduct, of any contact with his children. In addition, the applicant’s children had been unable to benefit from psychological support with a view to maintaining and attempting to improve their relationship with their father. Whilst the failure to make any progress regarding the applicant’s contact with his children was above all due to the mother’s failure to cooperate, that lack of cooperation could not exempt the authorities from their duty to implement every means capable of maintaining the family tie. With regard to the authorities’ refusal to communicate to the applicant the reports drawn up by the child psychologists, it was very important for parents to always be placed in a position allowing them to advance every argument in support of obtaining contact with their child and to be able to have sight of psychiatrists’ reports drawn up in cases concerning parental rights of contact with their children. No measure had been taken in the present case by the prosecutor responsible for minors following the preparation of various reports whose contents showed a need for psychological support involving all members of the applicant’s family. The Court could not criticise the applicant for failing to pursue his civil claims or criminal complaints which could have enabled the authorities to impose binding measures on the mother such as fines, or even imprisonment. Although the authorities were entirely aware of the mother’s obstruction of the applicant’s contact rights, they had failed to take any steps in that regard and had merely taken note of the situation. In that connection the Court could not but observe that the prosecutor responsible for minors had failed to take any action following communication of the reports drawn up by the social workers, and had refused to send those reports to the applicant which would have enabled him to undertake meaningful work with the child psychiatrists. Accordingly, the authorities had remained well below the level of what could reasonably have been expected of them in order to satisfy their positive obligation to take adequate measures to promote the prospects of holding a meeting between the applicant and his children and protect the former’s right to respect for his family life. Conclusion : violation (unanimously). Article 41: EUR 7,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes