CEDH · CASELAW;CLIN;ENG — 6 décembre 2011

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Turkey - 16192/06 Judgment 6.12.2011 [Section II] Article 8 Article 8-1 Respect for family life Inability of a father to exercise his contact rights in relation to his son during the course of divorce proceedings: violation   Facts – The applicant has a son who was born in 2001. He is divorced from the child’s mother, who was awarded parental responsibility by a court order. Relying on Article   8 of the Convention, he complained before the European Court that the authorities had failed to take the necessary steps to allow him to maintain relations with his son and had not removed the obstacles created by the child’s mother to the exercise of his right to contact despite the court decisions in which he had been granted that right. Law – Article 8: What was decisive in this case was whether the national authorities had taken all the steps that could reasonably have been expected of them in the proceedings concerning the applicant’s exercise of staying and visiting contact, with a view to reuniting him with his son. According to the documents in the case file, throughout the two sets of divorce proceedings, and in particular between 2005 and 2008, the applicant had applied to the court at least ten times, either seeking an order enabling him to maintain his personal relations with his son or informing the court that his visiting contact had been hindered by the child’s mother. The applicant had had no contact, or very limited contact, with his son for periods of up to two years. The psychological assessment of the parents and the child had not been completed until late 2008, more than seven years after the couple had separated and the applicant had first filed for divorce and applied to be granted parental responsibility. The experts’ reports had found that the period that had elapsed without adequate contact between the applicant and his son had played a decisive role in the child’s attitude of rejection towards his father. While acknowledging that situations involving failure to enforce orders granting parental responsibility and visiting and staying contact were particularly difficult to resolve by judicial means, the Court noted that there was no indication in the file that the family-affairs judge had made any efforts to reconcile the parties’ respective demands or taken any steps to facilitate the voluntary execution of court decisions. It had to be recognised that the ordinary rules on execution of court decisions, as applied in the present case, were hardly appropriate for resolving the type of situation encountered here, concerning the non-enforcement of the right to respect for family life. Furthermore, the national courts appeared to have refrained from taking any sanctions against the child’s mother, other than ordering her to comply on one occasion. The Court also noted that the national legal system made no provision for civil mediation, an option which would have been desirable as a means of promoting cooperation between all persons concerned. In this connection the Court referred to Recommendation No.   R (98)   1 of the Committee of Ministers of the Council of Europe on family mediation, which stated that recourse to family mediation could “improve communication between family members, reduce conflict between parties in dispute, produce amicable settlements, provide continuity of personal contacts between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and states”. In conclusion, by failing to take all the practical measures that could reasonably have been expected of it in the circumstances of the case, the respondent State had fallen short of its obligations under Article   8. Conclusion : violation (unanimously). The Court also held, unanimously, that there had been a violation of Article 6 §   1 of the Convention, taken separately and in conjunction with Article 13. Article 41: EUR 17,000 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