Moser v Austria: ECHR 2006

The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in public: ‘The Court considers that there are a number of elements which distinguish the present case from B v United Kingdom. In that case, the Court attached weight to the fact that the courts had discretion under the Children Act to hold proceedings in public if merited by the special features of the case and a judge was obliged to consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. The Court noted that in both cases the domestic courts had given reasons for their refusal to hear the case in public and that their decision was moreover subject to appeal. The Court notes that the Austrian Non-Contentious Proceedings Act now in force gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion. However, no such safeguards were provided for in the 1854 Non-Contentious Proceedings Act. It is therefore not decisive that the applicant did not request a public hearing, since domestic law did not provide for such a possibility and the courts’ practice was to hold hearings in camera.
Moreover, the case of B v United Kingdom concerned the parents’ dispute over a child’s residence, thus, a dispute between family members, ie individual parties. The present case concerns the transfer of custody of the first applicant’s son to a public institution, namely the Youth Welfare Office, thus, opposing an individual to the State. The Court considers that in this sphere, the reasons for excluding a case from public scrutiny must be subject to careful examination. This was not the position in the present case, since the law was silent on the issue and the courts simply followed a long-established practice to hold hearings in camera without considering the special features of the case.’
[2006] 3 FCR 107, 12643/02, [2006] ECHR 799, [2007] 1 FLR 702, [2010] ECHR 381
Bailii, Bailii
European Convention on Human Rights 6, European Convention on Human Rights
Human Rights
Cited by:
CitedNorfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
CitedChild X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
CitedDoctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .

These lists may be incomplete.
Updated: 31 January 2021; Ref: scu.245941