ECHR Article 8-1
Respect for family life
violation
Facts – The first applicant was the mother of the second applicant, a minor child. In 2010, following the breakdown of the first applicant’s marriage to the child’s father, the applicants left the matrimonial home in Bulgaria. The first applicant subsequently requested the father’s consent to allow their son to travel from Bulgaria to Germany where the first applicant was completing a postgraduate course, but he refused. She sought a court order, but the proceedings, which lasted almost two years and two months for three levels of jurisdiction, ended with the refusal of the Supreme Court of Cassation to allow the child to travel outside Bulgaria with only his mother. The applicants brought further proceedings in July 2012 which ended in a decision of December 2012 allowing the child to travel with his mother.
Law – Article 8: For the applicants, who were mother and child, the possibility of continuing to live together was a fundamental consideration which clearly fell within the scope of their family life within the meaning of Article 8 of the Convention. The Supreme Court of Cassation’s refusal, and the time it took the courts to decide the case, had prevented the applicants from being together while the first applicant pursued her studies in Germany. There had thus been an interference with both applicants’ right to protection of their family life. The interference was ‘in accordance with the law’ as the consent of both parents was required for all questions related to the exercise of parental rights, including the child’s travel abroad, and it pursued the legitimate aim of protecting the rights of the child’s father.
The requirement for both parents’ consent for any type and duration of travel abroad by their child did not appear to impose either an unreasonable or a disproportionate limitation on the applicants’ right to family life, given that the State is called upon to ensure a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life under Article 8 even when the relationship between the parents has broken down.
In the present case the two lower instance courts had allowed the child’s travel abroad in the absence of the father’s agreement after carrying out a detailed analysis of the family situation and establishing that travel would be in the child’s interest. Their decisions were, however, overruled by the Supreme Court of Cassation on the basis of its well established case-law according to which permission for a child’s unlimited travel abroad with one parent only could not be granted. The Supreme Court did not, however, take into account the circumstances of the case such as the father’s and mother’s ability to take care of the child, the elements of a psychological, emotional, material or medical nature or whether there was any real and specific risk for the child if he travelled with his mother abroad. In addition, it based its refusal on a technical error made by the mother when submitting her application and, more specifically, her failure to specify in writing Germany as the country of destination. Finally, despite prompting by the first applicant, it refused to define of its own motion concrete boundaries within which travel could be permitted. These factors, taken together, cast doubts on the adequacy of the Supreme Court’s assessment of the child’s best interests. In these circumstances, its analysis was not sufficiently thorough and its approach was overly formalistic.
In addition, the domestic proceedings had lasted more than two years and eight months. Throughout that period the child was unable to travel to join his mother. Given that the proceedings were decisive for both applicants’ right to family life under Article 8 and in particular for their ability to continue to live together and enjoy each other’s company, they should have been conducted with particular diligence. In view of the second applicant’s very young age and close attachment to the first applicant, some urgency had been required in the national authorities’ handling of the request for travel.
In sum, the decision-making process at domestic level had been flawed in that the Supreme Court had dismissed the travel request on what appeared to be formalistic grounds without any real analysis of the child’s best interests and the proceedings had lasted too long.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 jointly in respect of non-pecuniary damage; EUR 1,101 jointly in respect of pecuniary damage.

77818/12 – Legal Summary, [2015] ECHR 270
Bailii
European Convention on Human Rights

Human Rights, Children

Updated: 28 December 2021; Ref: scu.544176

ECHR Article 13
Effective remedy
Lack of domestic remedy to expedite parental contact proceedings: violation
Article 8
Positive obligations
Failure to take sufficient measures to enforce father’s contact rights: violation
Facts – In his application to the European Court, the applicant complained, among other things, of the length of domestic proceedings he had taken to enforce a court decision awarding him contact rights to his child and of the lack of an effective remedy to expedite the implementation of that decision (Article 13 of the Convention in conjunction with Article 8). He also complained under Article 8 that a EUR 300 fine imposed by the domestic courts on the child’s mother following her repeated refusal to comply with the decision granting him contact had been too low to have any coercive effect.
Law – Article 8: The domestic courts had imposed an administrative fine on the mother, as none of the six contact visits that had been arranged pursuant to the interim decision had taken place as scheduled. Although the Court had no information about the mother’s financial situation, it could not but observe that the overall fine of EUR 300 appeared rather low, given that the applicable law allowed the imposition of a fine of up to EUR 25,000 for each case of non-compliance. It was thus doubtful if the sanction could have reasonably been expected to have a coercive effect on the mother, who had persistently prevented contact between the applicant and the child. In addition, the enforcement proceedings had lasted more than ten months between the date the applicant had first requested the imposition of a fine until the fine was paid. A number of the delays were attributable to the domestic courts. The authorities had thus failed to take effective steps to execute the interim contact decision of May 2010.
Conclusion: violation (unanimously).
The Court unanimously found no violation of Article 8 regarding the length of further proceedings concerning contact custodianship or the review of the contact regulations.
Article 13 in conjunction with Article 8: The Government had contended that the applicant could have sued for compensation for the alleged unreasonable length of the proceedings under the Protracted Court Proceedings and Criminal Investigations Act 2011 (‘Remedy Act’).
The Court reiterated that a remedy will normally be ‘effective’ within the meaning of Article 13 in length-of-proceedings cases if it can be used either to expedite a decision by the courts dealing with the case or to provide the litigant with adequate redress for delays that have already occurred. However, in proceedings in which the length of the proceedings has a clear impact on the applicant’s family life a more rigid approach is called for which obliges the States to put into place a remedy which is at the same time preventive and compensatory. The State’s positive obligation to take appropriate measures to ensure respect for family life would risk becoming illusory if all that was available was a remedy leading only to an a posteriori award for monetary compensation.
The proceedings in the applicant’s case concerned the applicant’s right to contact with his young child and thus fell within the category of cases which risked being predetermined by their length. It thus had to be determined whether German law provided a remedy which not only offered monetary redress, but was also effective to expedite the proceedings before the family courts.
The Remedy Act had only entered into force a year and a half after the contact proceedings had started. In addition, the Court was not convinced that the potential compensatory remedy it provided could be regarded as having a sufficient expediting effect on pending proceedings in cases concerning a parent’s contact rights with young children. The Act thus did not meet the specific requirements for a legal remedy designed to meet the State’s obligations under Article 8 in such proceedings. Neither of the two other remedies that had been suggested by the Government could be regarded as effective either.
Conclusion: violation (unanimously).
The applicant’s length-of-proceedings complaint under Article 6 – 1 of the Convention was declared inadmissible for failure to exhaust domestic remedies as the applicant could have claimed just satisfaction under the Remedy Act after its entry into force. The Court had previously found that the Act was in principle capable of providing appropriate redress for the violation of the right to a trial within a reasonable time.
Article 41: EUR 15,000 in respect of non-pecuniary damage.
(See also Macready v. the Czech Republic, 4824/06 and 15512/08, 22 April 2010, Information Note 129; and Bergmann v. the Czech Republic, 8857/08, 27 October 2011; see, more generally, the Factsheet on Parental Rights)

62198/11 – Legal Summary, [2015] ECHR 205
Bailii
European Convention on Human Rights

Human Rights, Children

Updated: 28 December 2021; Ref: scu.543065