Case law

Denying access to children in the decision-making practice of the European Court of Human Rights

            Denying access to children regards also a considerable part of cases against the Czech Republic before the European Court of Human Rights (“the ECHR“) in which the applicants, especially fathers, complained that they had been unlawfully denied access to their children by another parent.[1] In a number of its judgments the ECHR found that there had been a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the basis that the national authorities failed to comply with their positive obligations by not taking effective steps to enforce parental rights to contact with their child, depriving parents opportunity to bring-up their child or by the excessive length of the proceeding. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.[2] Article 8 includes a parent’s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This applies also to cases where contact and residence disputes concerning children arise between parents or other members of the children’s family.[3] Proceeding involving relations between parents and children must be held with the utmost care where the court must proceed quickly enough and systematically apply different means of the decision enforcement regulated by the national law.[4] Failing to comply with these obligations may constitute responsibility of the state for the violation of the right to respect for family life. The fact that the authorities’ efforts foundered does not, however, lead automatically to the conclusion that there was a failure to comply with positive obligations under Article 8 of the Convention.[5] The national authorities’ obligation to take measures to facilitate reunion is not absolute. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention.[6] What is decisive is whether the national authorities did take all steps that could reasonably be demanded.[7] This reasonability is always examined under certain circumstances of each case. It is for the national authorities to strike a fair balance between competing interests of all concerned in the custody enforcement proceedings, in particular children, their parents and the community.[8] Although failure to enforce parental access rights is often caused by not taking sufficient steps by national authorities, contact often fails to realize despite taking adequate measures. As declares the ECHR, national authorities are not omnipotent, especially when, in family matters, they have to deal with parents who are unable to overcome their animosity and disregarded their child´s interests.[9] Parent who was unlawfully denied access to his child then often gets to an unsolvable situation. He disposes of an enforceable judicial decision, enforcement proceeding is in progress, however, contact is not realizing or only sporadically according to the whim of another parent, or even after months of legal wrangle. Quite rightly, therefore, the question arises whether do exist any other effective means, which would at least indirectly coerce parent to respect judicial decision on custody and thus help another parent to realize his right to contact with his child and avoid flagrant violation of parent´s right to family life.

 Decision-making practice of the Czech civil courts

            Already in the past, there appeared opinion in the literature that denying contact with the child could be considered as interference with parent´s personal rights.[10] Action for invasion of privacy brought by parent who had been denied contact with his child has been so far used in practice rarely. One of the first judicial decisions which declared interference with the parent´s personal rights in such cases was the judgment of the Regional Court of the first instance in Brno from 14 January 2011 no. 24 C 69/2003. The claimant – father of the child – demanded compensation for non-pecuniary damage in the amount of 16,000,- CZK on the basis that the defendant – mother of the child – interfered with his personal rights when despite enforceable custody judgment did not allow him contact with his child from 2002 till 2007. The Court stated that the mother prevented claimant contact with his child over an extensive period of time for purely subjective reasons and despite the enforcement proceeding and imposing fines to the defendant. There were no objective obstacles that would justify denying contact but it was only subjective attitude and unwillingness of the defendant to allow father contact with his child.[11] The Court stated that the defendant unlawfully interfered with the claimant´s personal rights protected by Article 11 of the Czech Civil Code No. 40/1964 Coll., namely the right to respect for private and family life. Awarding monetary compensation under Article 13 (2) of the Civil Code justified regarding to criterions stated in Article 13 (3) not only with reference to the intensity of the detriment but also with regards to the circumstances of the arisen infringement, which was long-term and arbitrary. “Demanded amount of 16,000,- CZK is only a symbolic minimum that can be awarded to the claimant (reflecting court´s incompetence to exceed the petition) regarding also the case law of the ECHR concerning Czech fathers harmed by the Czech judiciary in their right to contact with their child where the amounts of higher order were awarded.“ 

            In the similar case the Municipal Court of the first instance in Prague in its judgment from 6 September 2012 no. 31 C 28/2012 stated that unjustified denying contact with the child constitutes an interference with the parent´s personal rights, specifically his right to family life. The claimant alleged that the defendant did not allow him regular contacts with his daughter for more than four months after her birth despite preliminary ruling which awarded him right to contact once a week for two hours. Under the claimant mother interfered with his right to respect for family life by not allowing him contact with his daughter. He claimed for an apology and monetary compensation in the amount of 40,000,- CZK. Mother requested that the claimant´s action be dismissed on the reason that contacts were not realized because of bad minor´s health condition. The Municipal Court stated that one of the personal rights protected in Article 11 of the Czech Civil Code is the right to family life including right to contact with the child and participating on its upbringing. “If one parent unjustifiably denies another parent contact with their child and thus in fact prevents him from exercising his parental responsibility he interferes with the personal rights of that parent, namely his right to respect for family life.“ This general postulate shall be, however, confronted with the special circumstances of each case. Thus even unjustifiable denying contact with the child may generally constitute interference with parent´s personal rights the Municipal Court in Prague dismissed the action as unfounded. The Court noted that although mother refused to allow father contact with the minor she did it with respect to objective reasons, especially due to the minors´ health condition. Therefore, the Court held that there had been no violation of father´s personal rights.

[1] E.g. Volesky – Application No. 63627/00, Fiala – No. 26141/03, Pedovic – No. 27145/03, Mezl – No. 27726/03, Kriz – No. 26634/03, Patera – No. 25326/03, Reslova – No. 7550/04, Koudelka – No. 1633/05, Zavrel – No. 14044/05, Bergmann – No. 8857/08, Prodelalova – No. 40094/08

[2] Kutzner v. Germany, Application No. 46544/99, 26 February 2002

[3] Zawadka v. Poland, Application No. 48542/99, 23 June 2005

[4] Koudelka v. Czech Republic, Application No. 1633/05, 20 July 2006

[5] Mihailova v. Bulgary, Application No. 35978/02, 12 January 2006

[6] Volesky v. the Czech Republic, Application No. 63627/00, 10 June 2003.

[7] Nuutinen v. Finland, Application No. 32842/96, 27 June 2000

[8] Koudelka v. the Czech Republic, Application No. 1633/05, 20 July 2006; Nuutinen v. Finland, Application No. 32842/96, 27 June 2000

[9] Pedovic v. the Czech Republic, Application No. 27145/03, 18 July 2006

[10] KRALIK, Michal. Úprava styku s nezletilým dítětem. Právní rádce. 1999, No. 5, p. 10-12

[11] Refusing to allow father contact with his child defendant justified by worries about minor´s sexual abuse what has been never confirmed.


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