Wednesday, January 09, 2013

Failure to enforce contact order not breach of father's human rights

European Court of Human Rights - Image: CherryX
A father who claimed that the refusal of the High Court of Andorra to enforce a judicially-ordered contact schedule breached his rights under Articles 6 and 8 of the European Convention has lost his case.

In June 2005 the parties were legally separated in Andorra. The 'separation judge' granted custody of their son and daughter to the mother, and set up a contact schedule governing the father’s contact with them.

In July 2006 the separation judge granted a motion made by the mother to suspend the contact schedule until the production of a psychological report, following claims that the extremely troubled relations between the parents were negatively affecting the children.

In April 2007 the contact schedule was restored in respect of the daughter

A psychologist's report was eventually prepared in February 2008, and recommended that contact between the father and the children was not desirable until comprehensive treatment of the children had been carried out. Following this recommendation, the court suspended the contact schedule.

The treatment never took place, as the father had failed to deposit the sum required in security for the cost of carrying out the psychological examination. Instead, the father sought to appeal. His appeals were dismissed, and he applied to the European Court, alleging that the failure of the court to enforce the schedule had breached his rights under Article 6 (Right to a fair trial) and 8 (Right to respect for private and family life).

The European Court found that there had been no violation of the father's rights. With regard to Article 8 it found:
"...that in the particular circumstances of the case the domestic authorities did not fail to fulfil their positive obligations under Article 8 of the Convention. The Court appreciates that the domestic courts always had the best interests of the children in mind and relied on expert reports and other objective evidence when they decided to suspend the contact schedule set up in favour of the applicant."
A note of the judgment can be found on Family Law, and the full report, here.

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