Judgment 44684/14

Applicant name P.N.
Applicant type Natural person
Number of applicants 1
CountryCzech Republic
Application no.44684/14
Date 08/06/2023
Judges Georges Ravarani, président,
 Carlo Ranzoni,
 Stéphanie Mourou-Vikström,
 Lado Chanturia,
 María Elósegui,
 Mykola Gnatovskyy, juges,
 Pavel Šturma, juge ad hoc
Institution Court
Type Judgment
Outcome Art. 8 No Violation
Reason Positive obligation
Type of privacy Relational privacy
Keywords Acces to children
Facts of the caseThe present application concerns the applicant’s right to respect for his family life in a situation where his ex-wife took their children to the United States, without the applicant implementing the return procedure provided for by the Hague Convention, and where she subsequently obtained a judicial decision replacing the applicant’s consent to this removal (Articles 6 § 1 and 8 of the Convention).
The applicant and the mother reached a divorce agreement in 2007 under which custody of the children was awarded to her. The terms of the applicant’s access rights were the subject of several interim measures. The relationship between the parents having become very conflictual and the applicant having committed several attacks against the children’s mother and their home, the relationship between the children and the applicant had suffered. When detrimental effects resulting from incessant tensions were noted on the children’s development, the applicant was prohibited from having any contact with his children. It was only later that he was again authorized to see his children every first Saturday of the month, in the presence of the grandparents. According to the children’s guardian, the applicant did not respect the terms of his access rights.
Analysis The Court judges the case under Article 8 ECHR and finds that the authorities have made good judgment calls, that their reasoning was sound, that they took both the applicant’s and the childrens interests into account and that the decision-making process was adequate.

Interestingly, the ad hoc judge on this case, who are sometimes acused of voting in favour of ‘their’ government, writes a concurring opinion in which he stresses that he strugled with this case and that there were reasons to doubt whether the Convention was respected in full.

Two judges write a dissenting opinion, believing that there had been a violation of ARticle 8 ECHR in this case. They point out that ruling on the interim measure requested by the father, the domestic courts did not grant his request to prohibit the mother from taking the children outside the Czech Republic until they reached the age of majority and to force her to file children’s passports to the court. They note that the father’s fears expressed at the beginning of the summer of 2012 turned out to be perfectly justified since the mother sent an email on August 31, 2012 indicating that she was moving permanently to the United States. United with his daughters who would therefore not return to the Czech Republic. In addition they point out that the court of first instance granted the mother’s request to authorize the change of domicile of the children now fixed in the United States. The decision was confirmed by the court of appeal which was based on the opinion of the guardian who criticized the father for not having implemented the Hague Convention despite the assistance which had been offered to him. The dissenting judges note that the Office for the International Protection of Children, guardian, could have initiated the application of the Hague Convention itself, which it did not do. His “double hat” as a central authority with regard to the Hague Convention and guardian of the applicant’s two daughters is not without posing a problem of conflicts of interest, in his missions, and can explain a certain inertia of this last.
Other Article violation? No violation Article 6 ECHR
Damage awarded
Documents Judgment