Judgement 19165/20

Applicant name  I.S.
Applicant type Natural person
Number of applicants 1
Country Greece
Application no. 19165/20 
Date 23/05/2023
Judges Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir
Institution Court
Outcome Art. 8 Violation
Reason Positive obligation (rights and freedoms
of others)
Type of privacy Relational privacy
Keywords Parental contact; delay; positive obligation; margin of appreciation
Facts of the caseHusband convicted for domestic abuse, followed by divorce and custody being awarded to mother. Subsequent contact between father and children does not go smooth, inter alia because he seems to be violent towards them. Children do not want to speak to him, mother also discourages them from doing so. Court orders that the children should have telephone contact with their father and the mother will get a penalty every time she would hinder or block that. A long list of incidents followed, with the police, public prosecutor, social services, psychiatrists and others being involved. The applicant, in the end, felt that the court order allowing him contact with his children was not effectively enforced.
AnalysisAs to the admissibility, the Court points out that it had in an earlier case already found that the Code of Civil Procedure and the Civil Code to be ineffective in situations similar to that of the applicant. Moreover, domestic decisions on parents’ contact rights with their children are, in general, not definitive and can be amended at any time depending on events related to the disputed situation, which is another reason why, next to several other considerations it puts forward, the non-exhaustion of domestic remedies does not apply in this case.
As to the substance of the case, the Court points out that there was no real follow-up on the orders which were not or only partially completed. Mother refused to cooperated with social service investigations as to the actual residence of the children, potentially because she was afraid of actions by her former husband. None of the competent domestic authorities followed up on this issue and there is no evidence in the case file that the public prosecutor took any action in order to reveal the actual place of residence following the social worker’s conclusion. The same considerations apply to the psychological evaluation of the children ordered by the domestic courts, with which the mother did not cooperate. Moreover, mother relocated to another part of Greece, which seriously impacted the applicant’s right to contact.  
To the point that the contact between father and children was difficult because the children did not want to see their father, the Court points out that although children’s views should be taken into account, those views are not necessarily immutable and their objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests, especially in having regular contact with their child. ‘The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests; such interests normally dictate that the child’s ties with his or her family must be maintained, except in cases where this would harm his or her health and development. What is more, if a court based a decision on the views of children who are palpably unable to form and articulate an opinion as to their wishes – for example, because of conflicting loyalties and/or their exposure to the alienating behaviour of one parent – such a decision could run counter to Article 8 of the Convention. (§94)’. Because the Court finds that there was excessive delay in reinforcing father’s right to contact, it concludes, notwithstanding the State’s margin of appreciation, that the Greek authorities had failed to take all the necessary measures which could reasonably be required of them to enforce the applicant’s right to have contact and to establish a relationship with his daughters.
Other Article violation?
Damage awarded EUR 7,500, plus any tax that may be chargeable, in respect of non-pecuniary damage
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