INTRODUCTION. The case concerns complaints under Articles 6, 8 and 13 in relation to the unenforced contact orders in favour of the applicants, and the suspension of such contact.
CASE OF I.S. AND OTHERS v. MALTA
(Application no. 9410/20)
18 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of I.S. and Others v. Malta,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President,
Gilberto Felici, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 9410/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Maltese nationals, Mr I.S. in his own name and on behalf of his four children (“the applicants”), on 13 February 2020;
the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Articles 6, 8 and 13 of the Convention and to declare inadmissible the remainder of the application;
the decision not to have the applicants’ names disclosed;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the decision that the first applicant, a lawyer by profession, be allowed to act as legal representative (Article 36 § 2);
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns complaints under Articles 6, 8 and 13 in relation to the unenforced contact orders in favour of the applicants, and the suspension of such contact.
2. The applicants were born in 1978, 2007, 2010, 2013, and 2014 respectively and live in Marsaskala.
3. The Government were represented by their Agent, Dr V. Buttigieg, then State Advocate, and later by their Agents, Dr C. Soler, State Advocate and Dr J. Vella, Advocate at the Office of the State Advocate.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
THE CIRCUSMTANCES OF THE CASE
A. Background to the case
5. In or around 2016 the first applicant and his wife’s marriage broke down. At the time their children were one, three, five and nine years of age. The first applicant left the matrimonial home in November 2016 after consensual separation proved elusive. At the time he had three hours of contact a week with his children, in the presence of his wife at the matrimonial home.
B. Civil Proceedings
6. In April 2017 the first applicant filed for mediation (a compulsory step prior to separation) with the mediation section of the Civil Court (Family Section) (hereinafter the ‘Family Court’).
1. Care and custody
7. On 31 May 2017 the Family Court granted the parents joint care and custody, residence with the mother, access to the father as previously decreed (see paragraphs 12 and 13 below) and ordered the first applicant to pay maintenance for the four children.
8. On 7 July 2017 the first applicant and his wife initiated separation proceedings, after unsuccessful mediation. He requested that care and custody be exercised jointly, and that access be decided in the best interests of the children.
9. On 28 August 2018 the first applicant noting the behaviour of the mother, confirmed by the relevant expert reports, asked the Family Court to grant him custody and that the children live with him and the mother be given access rights. As an alternative, he asked the Family Court to issue a care order (with access rights to the parents) to enable the children to obtain the required care. He further asked the Family Court to hear the children only after they had gone through therapy, as they had been “brainwashed” by their mother. The mother objected on 6 November 2018 and on 7 November 2018 a children’s advocate was appointed to speak to the children and relate their views to the court. No decision appears to have been taken on the latter requestand it doesn’t appear that a child advocate met the children.
10. Following the report by Aġenzija Apoġġ (a social services organisation – hereinafter ‘AA’) of 10 September 2019 (see paragraph 47 below), in the light of the deteriorating mental health of the children and the emotional abuse they were suffering, on 26 September 2019 the first applicant again asked the Family Court to grant him care and custody, which could take effect with the help of AA. The mother made submissions in reply objecting. She considered that the best solution would be for her to have sole care and custody and claimed that the children were suffering from a trauma due to their father whom the children did not want to see, and which caused their urinary problems (see paragraph 46 below). By a decision of 10 October 2019 the first applicant’s request was refused “for some of the reasons set out in the reply”.
2. Access rights and contact
11. In the meantime, while the parents had joint custody, as appears to be the case to date, various decisions were taken in relation to the first applicant’s access rights.
12. Following the first applicant’s request, on 10 May 2017, the Family Court granted him access (contact) to his children, supervised by AA, in the absence of any other persons, which was set for Wednesdays between 17.00 and 19.00 and Saturdays between 11.00 and 14.00. A children’s advocate was appointed for the minors – however he only met them for a brief ten-minute meeting in October 2017.
13. On 30 May 2017 the Family Court rejected the mother’s request to be present during the father’s contact considering that her presence would be detrimental to the children. It noted that no access had actually taken place as it was impeded by the mother whose actions constituted contempt of court and any further action in this regard was being reserved. Bearing in mind that it was exam time in schools, the court altered the decree of 10 May 2017 ordering that the contact planned for Wednesdays was to start as of 1 July 2017. During these visits the mother and other family members were to keep a distance of more than 500 metres and were not to have any interaction with the children. The court warned the mother that any inappropriate behaviour by the children during the visits would not be tolerated and ordered that she should bring the children to AA half an hour before the visit and to immediately leave the venue. It decreed the mediation between the parties closed and authorised them to proceed with separation proceedings.
14. On 31 May 2017, the children’s access to the father was confirmed as previously decreed (see previous paragraph).
15. On 31 August 2017, following a request by the Family Court, AA drew up a report recommending that the father’s access to the two elder children be suspended since they created an obstacle to the relationship between the father and the two younger children. It however recommended that the two elder children attend therapy sessions with their father and that his access to the two younger children be granted, twice a week for two hours, in the father’s residence, without supervision. It also recommended that the mother cooperate with the social workers to enable a relationship of trust to be established. In their report it was noted that the children were aware of the judicial proceedings and that they argued with their father because he didn’t give them enough maintenance. It was also noted that the mother had complained about the social services and had denied any responsibility for the children’s behaviour.
16. On 5 October 2017 AA drew up a report on the status of the relationship between the parents and the children. According to the report the elder children did not want to attend the contact sessions and they were being aggressive towards their father and the social workers. It appeared that their mother had been inciting the children’s negativity towards their father, to the extent that they had become her accomplices and were lying about their father (such as injuring themselves and then blaming their father for such injuries, despite the social workers having witnessed the scene). In view of the emotional damage being suffered by the children, the contact was stopped. The report recommended that the parents attend therapy to help their children as well as participate in parenting skills classes.
17. On 22 November 2017 the Family Court ordered the expert psychologist (CS) to give the case priority and to report on any progress in relations between the minors and the first applicant. It ordered that the first applicant start to again have access to the two younger children once a week for two hours, under supervision by AA, and twice a week over the Christmas vacation period.
18. On 11 January 2018 CS was heard and the Family Court appointed a clinical psychologist (SVC) to assess the parties with the assistance of CS. However, it was ultimately CS who delivered a report in August 2018.
19. On 14 March 2018 the first applicant filed an application with the court complaining that the mother had been orchestrating every possible situation to alienate the children from their father, to the extent that they wished him dead. He requested, inter alia, that contact with the two younger children be unsupervised and that the court order supervised contact with the two elder sons. The mother objected. On 10 April 2018 the Family Court accepted the first applicant’s requests: to grant him weekly unsupervised access to the two younger children and supervised access to the two older children (each one on alternate weeks); that access to the children by the maternal family (who were contributing to the problems between the children and their father) be limited; that any therapy session be in addition and not in substitution of the family sessions that the first applicant had with the children, and that sessions with the elder children start immediately to avoid any further waste of time. It further considered that it did not have the competence to order the mother to stop, inter alia, sending letters threatening criminal proceedings every time he phoned the children. The mother challenged this decision and by a decree of 1 May 2018 the court rejected her challenge.
20. According to the first applicant, the only time supervised contact occurred, on 5 May 2018, the outcome was excellent.
21. On 24 May 2018, the first applicant filed an application with the Family Court complaining that he had only had access once in the six weeks since the court order (as he had been abroad twice, the children had been sick twice and the remaining times due to obstruction by the mother). He requested i) authorisation to request AA’s assistance to facilitate handover during access to the two minor children; ii) that such access be doubled during school holidays iii) that it be replaced when not successful; iv) that the first applicant be allowed to speak to the four children via telephone or video/messaging services; v) that it authorise access to the two elder children via the help of AA; vi) that it allow him to choose a psychologist to immediately start therapy with the elder children; and vii) to order a clinical assessment so that any necessary therapy is undertaken. The mother objected on 6 June 2018.
22. In the meantime, on 28 May 2018 the mother requested the Family Court to revoke the first applicant’s access rights. The latter objected on 13 June 2018.
23. On 9 June 2018 the first applicant had contact with one of the younger children with the assistance of the police who arrested their mother.
24. On 12 June 2018 a psychological expert was appointed to examine both parents. According to her report, the first applicant was anxious and uncertain about the future of his family. During the examination he had been reserved, though he wanted to show that he was doing what had been asked of him. He was generally passive and dependent on others to solve problems. He was rational and accepted what was going on in the family but was hopeful that the situation would improve through professional help; however, he did not feel responsible for the difficulties affecting his family. According to the same report the mother was rational, expressed little emotions, was reserved and also aimed at achieving a positive result in the test. She attempted to show more confidence than she actually had and was a little artificial in her interactions. It is possible that she felt better taking care of the children on her own as opposed to sharing such a responsibility with someone else who may challenge her opinion or identity. She was educated and intelligent and could get along with people as long as they agreed with her; she had difficulty accepting other opinions and while stating that her children were free to have their own opinions about their father, she herself said things which showed the influence she had on them and the discipline she expected of them.
25. By a decree of 12 June 2018, having seen the AA report, the court suspended contact and ordered that the [elder] children start therapy. By another decree of the same date, in reply to the application of 24 May (see paragraph 21 above), the court accepted the first applicant’s request that AA use all available means and give effect to the professional recommendations made to ensure access to the older children and address their lack of cooperation; and that the first applicant be authorised to choose his own therapist if the mother remained uncooperative, to enable therapy between him and the elder children to start without further delay.
26. In reply to the mother’s application of 28 May 2018 (see paragraph 22 above) on 14 June 2018 the court confirmed its decree of 12 June 2018 suspending contact.
27. On 18 June 2018 the first applicant filed another request asking the Family Court to authorise AA to facilitate the handover of the younger children; that access to them be doubled over the summer holiday period; that if access to them (via contact visits) was not possible for various reasons (including an unsuccessful handover) that another day be convened in replacement, and that he be allowed to communicate with the four children by telephone or skype twice a week. The mother objected insisting that the children did not want to see their father. Another report by AA was drawn up on 18 July 2018. By a decree of 19 July 2018, having seen the report from AA, the court ordered the mother to prepare the younger children for their contact visits with their father, that handover take place within the AAfacilities and that contact be held on specified dates and times. It rejected the request for oral communication with the four children.
28. In the meantime on 18 July 2018 the first applicant filed an application complaining that contact had still not taken place due to lack of cooperation from the mother and despite all the court orders, he thus asked the Family Court to intervene, setting out four pleas. The mother objected asking the court to stop all access to all the children, claiming that they were terrified of their father. By a decree of 3 August 2018 the Family Court granted the applicant’s first and fourth plea, namely, his request to have access to his younger children as established in the decree of 10April 2018 (see paragraph 19 above), and that AA affect spot checks so that the court could be sure that everything being alleged by the mother was untruthful. It postponed its decision on the other two pleas (concerning access to the elder children and police assistance to escort the first applicant in picking up the children and to enforce the contact order) until the parties were examined by a psychologist. A further decree was issued on 17 August 2018, where on the basis of the report of the psychologist CS dated 13August 2018, the Family Court upheld these two requests.
29. On 2 November 2018 a further request was made by the first applicant. A decree was issued on 20 November 2018 by which the court noted that so many requests had been lodged in these proceedings that it was difficult to know the most recent mental state of the children, it thus ordered that the children be heard by CS who would later report to the court. This order was never implemented.
30. On 23 November 2018 the first applicant filed a further application asking the Family Court to take action against the mother who continued to impede contact; to vary the conditions established by the decree of 10 April 2018 (see paragraph 19 above) in relation to the younger children and to order that the supervised contact with the elder children take place at their school with the help of AA. The mother objected. On 28November 2018 the first applicant asked the Family Court to hear the children and the parents before the Christmas break. The first applicant’s request was rejected on 15 December 2018 in view of the decree issued in the meantime on 6 December 2018.
31. By a decree of 6 December 2018, after having heard the three elder children in camera (without the first applicant having been informed), having regard to the best interests of the children, which it underlined, it revoked any previous decrees granting the first applicant access rights and suspended all contact, unless the children wished otherwise, until 6 June 2019 (when the court would hear the children again). The Family Court took note of the multiple requests lodged by the applicant for access to his children, as well as his request to issue a care order (see paragraph 9 above); the reports concerning access; that no effective access was taking place due to the children’s unwillingness; and the thoughts and wishes of the children as expressed to the court in its chamber.
32. On 15 January 2019 the first applicant challenged that decision and asked the Family Court to give him a copy of the children’s testimony. He also asked that the children be supervised by AA which was to recommend the relevant path and therapy to improve the child-father relationship. The mother objected noting that ever since the decision of 6 December 2018 (see paragraph 31 above), when contact had been stopped, the children were doing extremely well in all fields of life and no longer suffered the fear they had each time they were to see their father. She also considered that AA should not interfere in their lives.
33. AA also made submissions, noting that the suspension of access rights would worsen the situation, further distancing the children from their father and aggravating their negative impression of him. It further noted that in its professional opinion, in the present case there had been an alienation of one of the parents and the lack of any access rights for the father would lead to a complete alienation. It thus recommended that the minors attend individual therapy as well as family therapy with their father and that the parents start intensive psychological/psychiatric therapy.
34. By a decree of 29 January 2019, the Family Court noted that the children had only been “heard” by the court, but they had not “testified” thus it was not possible to accept the first applicant’s request to have a copy of their statements. It postponed its reply to the other requests until after the parties commented on the AA’s report, submitted on the same day.
35. The first applicant submitted his agreement with the conclusions of the report and his wish that AA supervise the parties and the necessary therapy/treatment, as well as any future contact sessions.
36. On 15 February 2019 the Family Court requested an expert (FC) to review all the previous reports concerning contact submitted in the proceedings and to inform the court about whether the children could benefit from therapy and contact with their father. Having heard the parents and examined the two report by the psychologist (CS), the reports from AA and the two reports issued by the play therapist concerning the two elder children, the expert recommended a further intervention with the younger children via a temporary change of residence (for 90 days), that is with the father, while the necessary interventions were undertaken (as practiced in England in cases of severe parental alienation).
37. The Family Court considered that 90 days was too long but accepted to put in place a 10-day change of residence and requested the expert to draw up an action plan to this effect. The latter was presented to the court on 10 April 2019. It established that the measure should take place from 17 to 26 May 2019. The mother was asked to be cooperative and prepare the children for the measure and the father was to attend psychological sessions to prepare for the measure. The two children were to be seen by the psychologist at least twice individually, and, together with their father, they were to attend other sessions (in her office and in the father’s place of residence), before the measure was put into place. Arrangements with the school, which all four children attended, were also to be made. A report would then be drawn up, including an assessment of the mother’s will to assist such access. This plan never came into effect.
38. On 11 April 2019 the Family Court issued a decree where it requested the parties to comment on the psychologist’s report. According to the report, the case of the four siblings was one of “pathological alignment with the mother. The created behaviours, as a result of the enmeshment existing between the children and the mother, instigated responses from the father which in turn contributed to the anxiety of the children. Moreover, the issues about the violence, which is alleged to have happened in the home between the parents in the presence of the children, is not entirely straightforward and this information is somewhat withheld. Therefore, it can be concluded that this case is a mixed combination of alienation and estrangement”. The report recommended an adapted (not generic) therapeutic intervention, namely a twelve-week programme where the two expert psychologists, to be appointed by the court, would complete an assessment and then an intervention. It noted that Parental Alienation was acknowledged as a form of child abuse which required necessary treatment to protect the children from harm. In many cases they should be removed from the care of the parent who is the cause of harm. However, in cases where there was estrangement, the reunification with the alienated parent could only take place when the children indicate to the psychologist that less divisive behaviours are being manifested between the aligned and the alienated parent. He considered that at this point the only intervention which could work was the twelve-week programme.
39. On 24 April 2019 the first applicant submitted to the court that he agreed with the recommendations of the psychologist. The mother objected as she considered that the psychologist was detached from reality and she complained about the proceedings instituted by the first applicant before the constitutional jurisdictions (see paragraph 51et sequi. below). She noted that she would not accept anything which might be potentially harmful to her children and warned the Family Court that should the situation change to the detriment of the children she would publish her story since she was ready to do anything for her children.
40. By a decree of 6 May 2019, noting that the interim decree of 16 April 2019 of the constitutional jurisdictions (granting access rights to the father in respect of the youngest child, see paragraph 54 below) was contrary to the Family Court’s decree of 11 April 2019, and that the latter court’s work had been stultified, the Family Court held that the parties were obliged to follow the interim decree of 16 April 2019.
41. By a decree of 23 March 2019, amended by a decree of 26 June 2019, the court accepted the mother’s request to travel abroad with the children, despite their father’s objections.
42. On 10 May 2019 the first applicant submitted to the Family Court that the interim decree of the constitutional jurisdiction only related to the youngest child and therefore it was for the Family Court to proceed on the recommendations of the psychologist and establish a plan to address the parental alienation and find a solution with respect to the three other children and the father’s contact with them. He asked the Family Court to revoke its order of 6 May 2019. The mother objected. The court reserved its decision to a further date, after the hearing to be held on 1 August 2019.
43. Further requests and objections were lodged by the parties. By a decree of 21 June 2019, the Family Court considered that it could not change the orders given by the constitutional jurisdiction which was to hear a report from BC, a clinical psychologist, concerning contact with the minors. Thus, awaiting that outcome, the court rejected the requests.
44. On 24 June 2019 the first applicant lodged a further request, based on the most recent reports, asking the Family Court to remove the children from their mother’s care temporarily in order for them to undertake the relevant therapy to counteract the parental alienation, and asked the court to set up a plan for contact and reunification with him.
45. On 1 August 2019 the Family Court heard two experts, BC and FC, and upheld the mother’s objection to BC. Thus, another expert (AG) was appointed to determine whether there had been parental alienation and parental estrangement from the parents or the grandparents, as stated in the report drawn up by BC. In order to eventually enable contact to resume, AG was asked to provide the relevant therapy to both parents individually, and to the children. The children were not re-heard. The court further ordered weekly supervised contact with the two youngest children and that BC and AG prepare the children for the upcoming holiday travel abroad with their father. It also ordered that the children resume football practice immediately without the parents’ obstructions, that they be accompanied solely by their mother (no other relatives),that their father should not be present for the time being and that the children follow catechism lessons in centre X (despite objections in relation to the fact that one of the mother’s relatives was involved in this centre).
46. AA submitted its report to the court on 4 September 2019. It informed the court that contact had not been successful. Indeed, supervised access started weekly as of 22 August 2019 with the two younger children for two and a half hours in the AA premises. However, while none of the children cried, at both visits the children refused to enter the visiting room where the contact with their father was due to take place and remained in the reception area next to their mother for the duration of the visit. The report also stated that on the second visit, having refused to use the toilet at the premises and their mother having been uncooperative, one of the children urinated in the reception area and the other one outside the AA premises. The mother explained that the children had a phobia for bathrooms, a problem which occurred even at home. AA thus recommended that the mother accompany the children to the visiting room and then leave the premises.
47. AA also submitted an explanatory note to the court on 10 September 2019 (see paragraph 10 above) in reply to the accusations made against its social workers and certain submissions made by the mother which they deemed untruthful.
48. On 22 November 2019 the first applicant requested the court to grant increased access to the four children over the Christmas holidays (the younger ones and the older ones on different days). The mother objected considering access should stop altogether not increase, and that in any event separating the children over Christmas day was counterproductive to the family’s well-being, moreover the first applicant had threatened via email to leave the country definitively. On 6 December 2019 the first applicant’s request was refused “for some of the reasons set out in the reply”.
49. No contact took place over the holidays, and the court took no further action. On 9 January 2020 the Family Court accepted the mother’s request to appoint VB as a clinical psychologist with the same objectives for which BC had been appointed by decree of 1 August 2019.On 28 January 2020 the case was adjourned until April 2020.
50. In the above proceedings at least four hearings were adjourned because the judge was dealing with other urgent matters.
C. Constitutional redress proceedings
1. The application
51. In the meantime, not having seen his two elder children since September 2017 and his two younger children since May 2018, on an unspecified date in 2019 the first applicant in his own name and on behalf of his minor children instituted constitutional redress proceedings noting that despite the various decisions of the Family Court granting him access rights to his children, such contact had not been effective in practice due to the mother’s behaviour, and that access had to be suspended because the children had become violent with both the father and the social workers. He relied on Article 8 of the Convention arguing that the State had failed in its positive obligation to take all the necessary steps to reunite him with his children. In particular he noted that the Family Court was allowing the father to be totally alienated from his children who had been brainwashed by their mother – a situation which had not been tackled by the Family Court. Furthermore, the decision to suspend his access rights had been taken on the basis of the children’s testimony (who had been accompanied by their mother) the content of which was not known to the first applicant, neither had he been heard by that court. Relying on Article 6, he complained that the Family Court did not take any action to ensure the enforcement of his access rights; it had ignored his request of 28 August 2018; and it had heard the children despite being informed of their mental state. Moreover, the children had been heard without their testimony having been transcribed, or the father informed of its content, as a result of which the court suspended his rights without giving any reasons and contrary to the principle of equality of arms.
52. The first applicant asked the court to issue an interim order: restoring access to his children, if necessary supervised by AA; to put on hold related civil and criminal cases pending the outcome of the constitutional complaint; and to hear AA in order to determine the best interest of the minor children. He also asked the court to find a violation of the above mentioned Articles and award compensation, to revoke the decision of 6 December 2018 (see paragraph 31 above) and give any other necessary remedy, including regular access to his children.
53. By a decree of 26 February 2019, a children’s advocate was nominated to represent the children. The advocate considered that no submissions were required from him.
2. The interim decision
54. By a decree of 16 April 2019, after hearing the first applicant and the mother who intervened in the proceedings, the Civil Court (First Hall) in its constitutional competence restored the first applicant’s access right in respect of the youngest child; contact was to take place for two hours per week, supervised by AA.
55. The Civil Court (First Hall) in its constitutional competencenoted that the Family Court had suddenly stopped access even to the youngest child (who had not been heard) leaving it up to the children to decide if contact was to resume and without providing any mechanism or framework to provide a follow-up of the children, or that supervised contact be granted in relation to the youngest child. Aware that it was not a third instance court it nonetheless noted that if contact was to be stopped this could cause irreparable damage and may cause permanent separation. While the Family Court had left the decision in the hands of the children, it was unlikely that they would change their minds when they had no contact whatsoever with their father and without them being monitored by relevant experts in the field of child psychology. It followed that a limited interim measure was called for. The Civil Court (First Hall) in its constitutional competenceappointed BC to examine the parents and the other three children and to draw up a report for the court by 4 June 2019 in relation to the existence of parental alienation or any other reason as to why the elder children were resisting contact with their father, and to submit recommendations in relation to an action plan to restore access rights in the event that these were in the interests of the minors.
3. The continuation of constitutional redress proceedings
56. The Civil Court (First Hall) in its constitutional competenceheard the elder children in May 2019.
57. According to the first applicant, on 20 June 2019 the court accepted the expert findings that there had been parental alienation and considered that it was now up to the Family Court to build upon the interim relief order.
58. As the sitting judge had left the Maltese judiciary, the case was adjourned until 27 September 2019 when a new judge was to be appointed.
59. On 31 October 2019 the parties and the Civil Court (First Hall) in its constitutional competence(with a new judge, X) agreed to hear the minor children only after the testimony of BC was heard. On 26November 2019 and 9 January 2020, the case was adjourned as BC had not been notified and proceedings could not continue without his testimony. The case was adjourned until March 2020.
60. In the meantime, domestic proceedings were initiated before the constitutional jurisdictions by a third party contesting the appointment of judge X to the Maltese judiciary. The constitutional jurisdictions in that case referred the matter, by way of preliminary reference, to the CJEU.
61. The applicant feared that as a result of this challenge any eventual decision taken by X in his case could be later declared null and void.
D. Criminal proceedings
1. Against the mother
62. Since April 2018 the first applicant lodged more than thirty criminal complaints before the Court of Magistrates concerning the denied access by the mother.
63. None of the complaints have been decided, as the hearings continue to be repeatedly adjourned.
2. Against the father
64. In 2019 an application was lodged with the Court of Magistrates by the mother against the first applicant for a delay in the payment of maintenance of more than fifteen days. Proceedings were withdrawn once maintenance was paid.
E. Domestic proceedings pending the proceedings before this Court
1. Before the Family Court
65. VB and VEF (a psychologist involved with the children) filed a note on 21 May 2020, whereby it was concluded that this was a case of moderate to severe parental alienation, which required a family based intervention plan, including all the nuclear family and other members of the family who may be contributing to the dynamics of the alienation. In particular the psychologist VEF noted that the children viewed their father in a negative light and where angry with him, they thought that he did not love them and considered him dangerous. The younger siblings had difficulties recollecting incidents from the past, indicating that they were influenced by their older siblings. VB who held five interventions with the first applicant and four with the mother stated that the parents had an accumulated anger towards each other and that the children were suffering from their conflict. The father was sad and frustrated, and the mother was concerned about the well-being of the children. VB considered that both parents would benefit from highly specialised support in dealing with the very delicate situation. It was noted that parental alienation intervention could take four different forms and where usually mandated by the court. These forms were i) custody with the favoured parent with efforts to remedy the alienation; ii) custody with the rejected parent; iii) placement apart from both parents; or iv) custody with the favoured parent and no scheduled contact with the rejected parent, nor court-ordered interventions. As there had been very little progress, the parents’ readiness to engage in therapy sessions was questioned. Hands-on parental skills during supervised visits (SAVs) were considered more beneficial. While the father asked for a plan which went beyond therapy, the psychologists considered that therapeutic interventions might take quite a long time, they thus asked the court for guidance as to how to proceed.
66. Both parties filed submissions in reply to the report. No court decree had been issued by September 2020 (date of applicants’ observations).
67. On 18 July 2020 the Family Court did not accept the first applicant’s request to allow M.S. to receive his First Holy Communion, in view of the conflict between his parents and the parental alienation.
68. On 28 July 2020 the Family Court rejected the request by the first applicant that the children reside with him, which had not been recommended by the expert – no other action was ordered. The first applicant challenged this decision and on 31 July 2020 the court requested the experts VB and VEF to suggest a plan on how to deal with this serious case of parental alienation, as opposed to them asking the court – that had no professional expertise or knowledge concerning the psychology of children suffering from serious parental alienation – to indicate a way forward as the latter had done (see paragraph 65 above).
69. On 4 August 2020, the applicant made two requests for a reunification programme, including access to his two younger and two elder children respectively.
70. On 17 August 2020 the clinical psychologists filed another note, confirming the previous one, stating that complex psychological dynamics had accumulated over the years – each member of the family needed therapeutic support and both parents needed to take responsibility for the family dynamics. They recommended that a therapeutic intervention plan be determined on the basis of a family focused therapy approach, that supervised access visits be carried out with a specific therapeutic goal to build a relationship between the applicants, and that this be done by W (a private mental health clinic) where they would be followed by a team of professionals and that the children are taken to the visits by a person other than the mother. They noted that a temporary change of residence was the option that showed to be effective in overcoming severe alienation, and which may need to be considered once therapeutically focused visits start to take place. Various considerations had to be made and this option could be envisaged for the younger siblings, for the time being. However, should the court order a change in residence, this should be done gradually by increasing the number of supervised visits until daily contact had been established which would then enable a change of residence.
71. The first applicant filed submissions, together with a variety of information about reunification programmes, but not the mother, and by September 2020 (date of applicants’ observations)no decision had yet been taken.
2. Before the constitutional jurisdiction
72. In 2020 the expert was heard, but no decision has yet been delivered, thus, in November 2020 (date of the Government’s observations) the proceedings before the first-instance constitutional jurisdiction were still pending.
F. Recapitulation of visits and therapy
73. In 2017, the applicants had seventeen successful visits together, the last being on 27 September 2017, after which the first applicant has not had contact with his two elder children. From that date, until 11 April 2018 the first applicant had eighteen successful visits but only with his two younger children.
74. As of 18 April 2018 until 21 November 2018, the first applicant was meant to have thirty-two access visits with either of his children of which only two were successful – on 5 May 2018 when he saw his two younger children and on 9 June 2018 the last time he saw E.S.
75. Pursuant to the constitutional jurisdiction’s interim decree, between 25 April and 25 July 2019, he had ten scheduled visits with his younger son of which eight where successful, the visit of 11 July 2017 being the last time he saw him.
76. Following the Family Court’s decree of 1 August 2019 until September 2020, the first applicant had forty-one scheduled visits with his two younger sons none of which was successful (see paragraph 46 above).
77. It follows that the last time the first applicant had contact with the second and third applicants was September 2017, and the last time he had contact with the fourth and fifth applicants was June 2018 and July 2019 respectively.
78. According to a report by AA of 2020, the visits were always difficult with the children refusing to have contact with their father and insulting him. The mother had not shown any cooperation in facilitating the visits.
79. A few therapy sessions with the psychologists took place between November 2019 and March 2020 leading to the reports mentioned above (see paragraphs 65 and 70 above).
RELEVANT LEGAL FRAMEWORK
80. Article 338 of the Criminal Code concerns, contraventions against public order, and its sub article (ll) reads as follows:
“Every person is guilty of a contravention against public order, who –
when ordered by a court or bound by contract to allow access to a child in his or her custody, refuses without just cause to give such access;”
I. Scope of the case
81. While in his submissions the first applicant refers to the decree concerning care and custody of the children, and his effective involvement in the upbringing of the children, the Court notes that such a matter had not been raised in the application and was not communicated to the respondent Government. It thus falls outside the scope of this application which concerns the first applicant’s access rights and family reunification.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
82. The applicants complained under Article 6 of the Convention that the principle of equality of arms had not been respected in the proceedings leading to the decision of 6 December 2018 denying them any contact; that proceedings before the Family Court were taking too long; and that they were being penalised in the civil proceedings because of their attempt to have their rights safeguarded by the constitutional jurisdictions. They further complained about the non-enforcement of the contact orders, and the lack of any action being taken by the courts of criminal jurisdiction despite the various complaints filed; as well as the legitimacy of the constitutional jurisdiction hearing his case. The applicants further considered the State was failing to fulfil its positive obligation of safeguarding the applicants’ family life by seeking family reunification and protecting the children from further alienation as required under Article 8 of the Convention. Relying on Article 13 the applicants also complained that they had no domestic remedy capable of enforcing the contact orders and protecting them from further parental alienation, particularly because the system lacked the adequate tools.
83. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114-115, ECHR 2018). The Court further notes that while Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see IosubCaras v. Romania, no. 7198/04, § 48, 27 July 2006, and Diamante andPelliccioni v.SanMarino, no. 32250/08, § 150, 27September 2011). In view of the close link between the complaints, the Court shall examine the application solely under Article 8, which reads as follows:
“1. Everyone has the right to respect for his private and family life…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
84. The Government submitted that the applicants had failed to exhaust domestic remedies, as constitutional redress proceedings – which they considered to be speedy – were still ongoing.
85. Without prejudice to the above objection the Government submitted that the applicants having lodged their application on 13 February 2020 the facts occurring prior to 14 August 2019 were inadmissible for failure to respect the six-month rule.
86. The applicants submitted that their situation was one which did not concern one single act or omission but a state of affairs which was still ongoing. Since the situation had not come to an end, according to the Court’s case-law, the six-month period had not yet started running.
87. The first applicant submitted that he had lodged more than fifty applications with the Family Court, thirty criminal complaints, and constitutional redress proceedings in his own name and on behalf of his children. It therefore could not be said that he had not brought the substance of the complaints before the appropriate domestic body. However, none of these avenues had proved effective, even worse, the Family Court had “punished” them for seeking constitutional redress, forcing them to seek redress before this Court. The Family Court in a decree of 31 July 2020 (see paragraph 68 above) had also admitted that it did not have the resources or the know-how to deal with the psychological issue concerning parental alienation. Thus, not only had proceedings been ineffective but they had also been lengthy, with the result that over the four years of proceedings the situation had continued to deteriorate causing irreparable harm to the applicants. In particular the applicants noted that following the interim decision of the first-instance constitutional jurisdiction, which concerned only the fifth applicant, it had taken thirteen months to hear the evidence of the expert and eighteen months after the interim order no final judgment had yet been issued, despite the sensitive subject matter of the proceedings and the effect on the children. It was also submitted that doubts about the legality of the appointment of the constitutional court judge – which were pending a decision at EU level – created a problem of legal certainty, as the applicant feared that any of her decisions may in future be annulled on this basis.
2. The Court’s assessment
(a) General principles
88. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16September 1996, §65, Reports of Judgments and Decisions 1996‑IV; Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 Others, § 70, 25March 2014; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 221, ECHR 2014 (extracts)).The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain, not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, §66, and Vučković and Others, cited above, § 71). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mocanu, cited above, § 222). Particular attention should be paid to the speediness of the remedial action itself; it not being excluded that an otherwise adequate remedy could be undermined by its excessive duration(see McFarlane v. Ireland [GC], no. 31333/06, § 123, 10 September 2010).
89. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (ibid., § 260; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012, and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4June2001).
90. In cases where there is a continuing situation, the period starts to run afresh each day, and it is in general only when that situation ends that the six‑month period actually starts to run (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159, ECHR‑2009).
91. The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State which render the applicants victims (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 75, 10 January 2012). The Court has however also established that omissions on the part of the authorities may also constitute “continuous activities by or on the part of the State” (see, for example, Sabin Popescu v. Romania, no. 48102/99, § 51, 2 March 2004 concerning a parent’s inability to regain parental rights; Iordache v. Romania, no. 6817/02, §66, 14October 2008, and Hadzhigeorgievi v. Bulgaria, no. 41064/05, §§ 56-57, 16July 2013,both concerning non‑enforcement of judgments).
(b) Application to the present case
92. The Court must examine whether, in all the circumstances of the case, the applicants did everything that could reasonably be expected from them to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII).
93. The Court observes that the first applicant repeatedly made relevant requests concerning his access rights and the lack of enforcement of the court orders before the Family Court. Pending those proceedings, as allowed by the domestic legal framework, he instituted (on his own behalf and on behalf of his children) constitutional redress proceedings, and while an interim decision was issued, proceedings on the merits are, despite the subject matter, still pending at first-instance nearly two years later. Furthermore, the first applicant lodged multiple criminal complaints requesting the enforcement of the contact orders, none of which have been heard.
94. Against that background, the Court concludes that the applicants did everything that could reasonably be expected of them to exhaust the national channels of redress (see P.F.v. Poland, no. 2210/12, § 45, 16 September 2014, and Malec v. Poland, no. 28623/12, § 55, 28 June 2016). Further, the Court notes that the different remedies undertaken are all still pending, and that the application was lodged with the Court immediately, once it transpired that those remedies could not be considered effective in this situation, which is a continuing one and continues to deteriorate. The applicants thus complied with the six‑month time-limit.
95. The Court accordingly dismisses the Government’s objections.
96. The Court notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicants
97. The first applicant submitted that he had no effective contact with his children for four years, with their relationship worsening and developing into severe parental alienation as a result of the malfunction of the system in place, both at the level of the domestic courts and other state institutions.
98. The Family Court had taken important decisions including the decree of 6 December 2018 without hearing the first applicant’s views and solely based on the views of the alienated children, whose position was not safeguarded by anyone. While a child advocate had been appointed, he had spoken to the children once for fifteen minutes and then disappeared. It was submitted that the Family Court should have known that while children should be heard, they do not have a veto as vulnerable minors may not be speaking in their own best interest. Furthermore, they had not been heard in a safe environment but rather in the judge’s chamber, in the absence of child experts, and no minutes were kept of that meeting, thus hindering the first applicant’s position in the proceedings.
99. The Family Court repeatedly refused to allow access visits ignoring its own experts (including in relation to the change of residence programme in both 2019 and in 2020) and giving little reasons, as was the case for the decision of 6 December 2018, which was still in force in respect of two of the children. It was noted that simply finding that “it was in the best interests of the child” without explaining why it was so, or holding that the reasons are “some of those mentioned in the [party’s] reply” without explaining which, made it difficult to challenge such decisions, or file new requests.
100. The Family Court repeatedly took too long to determine issues with hearings being more than six months apart, in breach of the reasonable time principle. It even went further and refused to take further cognisance of the case once the first applicant sought constitutional redress (see paragraph 40 above). Similar delays persisted in the constitutional redress proceedings (where it took four months to replace a judge, and thirteen months to hear an expert) and the criminal proceedings (which were repeatedly deferred, and thirty months later the first applicant was still unable to get an access decision enforced).
101. These procedural failings, together with the failure to allow any access, led to a breach of Article 8 as a result of the breakdown of the relationship between the applicants due to the severe parental alienation which was allowed to flourish. It was noted that parental alienation was considered as a form of domestic violence against the children and the alienated parent. This notwithstanding, the applicants in the present case were faced with inaction by the Family Court in particular who repeatedly requested reports which confirmed alienation but took no action only to conclude in 2020 that it had no expertise in the matter (see paragraph 68 above). They considered that the Family Court had a duty to identify the causes of alienation, rather than encourage it. They noted the decisions of December 2019 where the first applicant was denied visits over Christmas because it was inconvenient for the mother, and the decision to allow catechism lessons with the mother’s brother, as examples. At the time of observations (September 2020) no specific therapy had yet started, nor any reunification plan put in place.
102. Moreover, despite multiple criminal complaints to enforce any access awarded by both the Family Court and the Constitutional Court, not a single missed access was enforced by the police or AA and no other means were available to enforce such decisions. It was submitted that Article 338 (ll) of the Criminal Code (contraventions against public order ‑ the provision used for enforcing child access) was itself not appropriate, since neither placing in detention the defaulting parent nor paying a fine, would reunite the family. Thus, the legal framework was deficient and could not comply with Article 8 requirements and the newly enacted Minor Protection (Alternative Care) Act of 2020 did not solve such issues. In particular, AA which was run by experts in social work and psychology had suggested possible remedies but they did not have the power at law to enforce them and were dependent on the Family Court, which in turn required a circa two-month court procedure to comply with or even understand the issues. Thus, other state agencies that had a positive obligation to seek family reunification and to take the necessary steps to achieve this aim had also been of no avail. In the applicants’ view all the institutions involved, judges, lawyers and state entities such as the police, had little experience in parental alienation contributing to the situation.
103. In reply to the Government, the applicants submitted that it had been documented by world experts that supervised access could do more harm than good, contributing to parental alienation. This went to show the lack of knowledge of the Maltese authorities of the subject matter and the relevant steps to combat the issue. In 2017 the first applicant had asked for this only as a temporary measure which became permanent without any justification. In reply, it was also noted that the CS report of January 2018 did not deal with access and the reports by AA never suggested stopping access, quite the contrary, as shown in the report of January/February 2019.
(b) The Government
104. The Government submitted that in order to fulfil the State’s positive obligation to reunite the applicants, the courts had ordered supervised visits and appointed a number of experts to assess the children’s behaviour and make relevant recommendations, as was the case with the report of 17 August 2020. AA had also made recommendations.
105. The Family Court ensured that the first applicant kept regular contact with his children and condemned the mother’s behaviour, making specific orders when necessary. They considered that the fact that access was supervised was necessary for the courts to make informed decisions, and to ensure the children’s wellbeing given that they suffered from Parent Alienation Syndrome. In the Government’s view the Family Court’s decisions were taken in the supreme interest of the children and that court had even appointed a child advocate to act on their behalf and had recourse to expert opinions in taking its decisions. It also heard the three elder minors who it considered were mature enough to express their opinions.
106. Furthermore, the father’s multiple requests were heard and decided in good time (bearing in mind that the opposing party must also file submissions) and he had continuously been involved in the decision‑making process. Domestically he had the possibility, of which he availed himself of, to request variation of access and the revocation of court orders. He even had the possibility of instituting constitutional redress proceedings where an interim order had been issued in his favour. In the Government’s view the decrees’ issues had been reasoned bearing in mind that according to the Court’s case law the domestic courts are not required to give a detailed answer to all the legal arguments.
107. According to the Government the suspension of the first applicant’s access rights, by the decision of 6 December 2018, was also in the best interests of the children, that decision being taken after the court considered various factors including the considerable number of requests of the first applicant, the expert reports filed, the father’s suggestion to put the children into care, and the wishes of the children. The Family Court noted, after hearing the children, that they resisted contact with their father, it thus took into account their wishes. That suspension was for a period of six months and had to be reviewed if deemed necessary for the best interests of the children. The Government further submitted that the later inaction of the Family Court, once the applicant had sought constitutional redress, was to avoid giving any decisions which might conflict with each other and create legal uncertainty.
2. The Court’s assessment
(a) General principles
108. The first paragraph of Article 8 of the Convention guarantees to everyone the right to respect for his or her family life. As is well established in the Court’s case-law, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by this provision (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 202, 10 September 2019). That interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society” (see Elsholz v. Germany [GC], no. 25735/94, § 45, ECHR 2000‑VIII). In determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017).
109. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life (see Diamante and Pelliccioni, cited above, § 173). In relation to the State’s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I). In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case (see Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299‑A). The State’s positive obligation is not one as to results, but one as to means employed (see Ribić v. Croatia, no. 27148/12, § 94, 2 April 2015).
110. The Court reiterates that lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Z. v. Poland, no. 34694/06, § 75, 20 April 2010) which, depending on their nature and seriousness, may override those of the parent (see Elsholz, cited above, § 50). In particular, a parent cannot be entitled under Article 8 of the Convention to have measures taken which would harm the child’s health and development (ibid., § 50). The Court reiterates in this connection that the cooperation and understanding of all concerned will always be an important ingredient in such proceedings. While national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention (see Hokkanen, cited above, § 58).
111. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State’s margin of appreciation (see Diamante and Pelliccioni, cited above, § 174). The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life (see, inter alia, C. v. Finland, no. 18249/02, §§ 53 and 60, 9May 2006, and Elsholz, cited above, § 49). Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see Strand Lobben and Others, cited above, § 211).
112. Where the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their discretion. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance (see Diamante and Pelliccioni, cited above, § 174; see also, inter alia, Hokkanen, cited above, § 55).
(b) Application of those principles to the present case
113. The Court observes that, at the time of the introduction of the application with the Court the first applicant had not had reasonable contact, despite court orders to this effect, with his four minor sons (then aged 5, 7, 9 and 13) for over forty months. Requests to enforce the court decisions granting him access had not been successful. Moreover, by a decision of 6 December 2018 the first applicant’s access rights were entirely revoked, and remained so for various months until they started being gradually reinstated following the intervention by the constitutional jurisdiction – only in respect of the youngest child – until they were once again brought to a standstill in practice. Indeed, despite later decisions of the Family Court granting access rights in respect of the younger children, these were once again unsuccessful. As a result the first applicant has not had any meaningful contact with his two older sons (the second and third applicant) in more than three years and with his two younger sons in more than two and half years and one and a half years respectively (see paragraph 77 above).
114. Against, this background the Court will firstly assess whether the domestic authorities took all necessary steps to facilitate contact between the first applicant and his four children (the remaining applicants) when this had been ordered. The Court will then analyse the impugned decisions and the reasons adduced by those courts as well as the decision-making process that led the domestic courts to reach those decisions.
(i) Whether the authorities took all the relevant steps to facilitate contact
115. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive in any assessment of the national authorities’ conduct is whether they have taken all necessary steps to facilitate the execution that can reasonably be demanded in the specific circumstances of each case. The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between a child and the parent who does not live with him or her (see, for example,Ribić cited above, § 93, and Fernández Cabanillas v. Spain (dec.), no. 22731/11, § 48).
116. The Court observes that as of 18 April 2018 until 21 November 2018, the first applicant was meant to have thirty‑two access visits with either of his children of which only two were successful and following the Family Court’s decree of 1 August 2019 until September 2020, the first applicant had forty-one scheduled visits with his two younger sons none of which were successful (see paragraphs 74 and 77 above).
117. The Court reiterates that the establishment of contact may require preparatory or phased measures and that the cooperation and understanding of all concerned will always be an important ingredient.However, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the best interests of the child as primary consideration (ibid. §§ 47 and 50).
118. The Court notes that despite the admonitions to the mother by the Family Court (see, for example, paragraph 13 above), and the reports and recommendations of AA throughout (see, for example paragraphs 15 and 16 above), no concrete measures were put in place to ensure that access was effective (compare A.V. v. Slovenia, no. 878/13, § 77, 9 April 2019) and that the mother did not hinder the applicants’ planned visits. The latter’s lack of co-operation was persistently brought to the attention of the Family Court, who in turn often issued orders in this respect (see paragraphs 27 and 28 above) which nevertheless remained unheeded (see paragraph 30 above). The Court observes that despite the Family Court’s order for police assistance, contact could still not take place, allowing the mother to take full control of the situation, to the extent that she felt comfortable threatening the court (see paragraph 39 above).
119. The Court further reiterates that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent who owes enforcement (see, for example,Karadžić v. Croatia, no. 35030/04, § 61, 15 December 2005;Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 130, 1 December 2009; andAneva and Others v. Bulgaria, nos. 66997/13 and 2 others, § 110, 6 April 2017). It notes that despite the multiple criminal complaints lodged by the first-applicant (see paragraph 62 above), not one was heard by the criminal jurisdictions thus, the party at fault, namely the other parent who persistently refused to follow enforceable judicial decisions, has remained largely unconstrained (ibid. § 116).
120. The relevant authorities, faced with such obstruction, did not ensure that timely and suitable preparatory measures were put in place and carried through (ibid.).
121. The Court draws attention to the fact that the reason the children resented contact with the first applicant was clear from the start (see paragraph 16 above). However, AA, which was entrusted by the domestic court to assist the applicants at all stages (see, for example, paragraphs 25 and 27 above) failed to take any meaningful measures to facilitate such contact, or adapt it to the situation. In particular, at one point, it stopped contact contrary to the court’s orders (see paragraph 16 above) and once contact was again reinstated, little was done to ensure its success. For example, the 2019sessions, which were organised in a rather formal environment on AA premises, were ineffective as the children, who were clearly not prepared in any manner, ran away or refused to enter the room, remaining with their mother (see paragraph 46 above) (compare A.V. v. Slovenia, cited above, § 80). The Court does not doubt the good faith of the staff of AA, who admittedly were faced with constant attacks by the mother (see, for example, paragraphs 32 and 47 above). However, this could not allow for passivity on their part in view of the deteriorating situation. The Government have shed little light on the applicable legal framework and its application in practice, including the possibilities open to AA, thus, the Court is unable to delve further into the matter. Nevertheless, it reiterates that it is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention (see Ignaccolo-Zenide, cited above, § 108).
122. In this connection, the Court observes that the authorities were well aware of the negative effect that the conflict between the parents had on the children, and recognised that family therapy, for both the children and the parents, was necessary for the successful establishment of contact. The Court draws attention to the expert opinions delivered at various stages of the proceedings, and the repeated calls for therapy by the first applicant, and orders to that effect by the domestic court (see, for example, paragraphs 15, 16,19, 21, 25, 37 and 45 above). That notwithstanding, it was only three years later, end of 2019, that some sort of therapy was initiated (see paragraph 79 above) (compare and contrast Płaza v. Poland, no. 18830/07, § 81, 25 January 2011, and Răileanu v. Romania (dec.), no. 67304/12, § 51, 2 June 2015). Despite such unambiguous observations by the social services and the experts, who produced multiple reports with conclusions and recommendations, these were not followed up in practice. Therefore, the relevant authorities failed to make sure that professional, targeted support was effectively provided to the children, which was critical for them to get used to the idea of seeing their father. Such support was part of the indispensable preparatory measures that the authorities were required to take in line with their positive obligations under Article8 (see Anevaand Others, cited above, § 109). In particular, preparatory measures were vital for ensuring the children’s autonomous engagement with the situation, independently from the other parent’s undeniably decisive influence (ibid). However, the children were not offered any help or advice aimed at overcoming the alienation stemming from the mother and the fact that they had had no meaningful contact with their father for months which became years with the passage of time (see A.V. v. Slovenia, cited above, § 79). The Court recognises that the children were reluctant to see their father, and rejected him, a situation exacerbated by the other parent’s unlawful refusal to comply with the court orders and the ineffectiveness of any enforcement measures. However, the protracted lack of enforcement contributed to creating and consolidating a situation where the passage of time effectively alienated the children, which in turn significantly enhanced the difficulties in enforcing the orders (compare Anevaand Others, cited above, § 115).
123. The Court reiterates that it is not its role to substitute itself for the national authorities in the assessment of what specific measures were necessary to be undertaken in the circumstances, given that those authorities are in principle better placed to take such decisions (ibid. § 116). However, reiterating that the passage of time can have irremediable consequences, it cannot ignore the above-mentioned insufficient action by all the state authorities involved. Furthermore, the Court notes with concern that to date of the observations of the parties (November 2020), the authorities involved had still not put in place a way forward to permit the rebuilding of the relationship between the applicants, who have fallen victim of a ping pong between the Family Court and the appointed psychologists (see paragraph 65 and 68 above), prolonging even further the eventuality of some fruitful contact between the applicants.
124. Consequently, having regard to the foregoing and notwithstanding the respondent State’s margin of appreciation in the matter, it cannot be said that the authorities have taken all necessary steps that could reasonably be demanded in the given circumstances to enforce the applicants’ contact rights.
(ii) The domestic court’s decisions revoking access
125. The Court notes that in the initial stages after the couples’ separation the Family Court granted the first applicant access to his four children. That access having become complicated, AA in practice stopped the visits at the end of September 2017 (see paragraph 16 and 77). In November 2017, awaiting the psychologists report, the Family Court nonetheless reinstated the first applicant’s access to his two younger sons (see paragraph 17 above) and on 10 April 2018 access was again decreed in favour of all four children, over and above therapy sessions (see paragraph 19 above). Two months later, in June 2018, having seen AA’s report the court suspended contact [of the elder children] privileging therapy (see paragraphs 25 – 26 above) and on 19 July 2018 confirmed access to the younger children (see paragraph 27 above), only to suddenly revoke all access in respect of all the children on 6 December 2018 (see paragraph 31 above). The latter decision is the focus of the applicant’s complaint.
126. The Court observes that while it is true that the decision underlined that it was in the best interests of the children, it contained no explanation as to why it would not be in the children’s interest to continue developing a relationship with their father. The latter had never been considered unsuitable for maintaining contact with his children, he repeatedly sought the assistance of caseworkers and demonstrated a readiness to work with professionals in order to achieve positive developments in his relationship with the children and to find the best arrangements for contact with them (compare A.V. v. Slovenia, cited above, § 82). He had not been of bad character or influence, nor had there been evidence of any realistic risk of abduction (see, a contrario, Jansen v. Norway, no. 2822/16, § 97, 6 September 2018) or of any actual violence (see the AA report at paragraph 38 above). The only thing that the Family Court seems to have reproached the first applicant of were his multiple requests to have contact with his children (since the ordered contacts were unsuccessful), as well as his alternative request, early in 2017, that the children be taken into care if necessary. Furthermore, it had not been established, not even suggested, by any professional means that the continuation of visits would disturb the children’s emotional and psychological balance – indeed just after the impugned decision AA showed its disapproval of that decision (see paragraph 33 above). Nor had the court explained why in its opinion, having heard the minors, further contact would have negatively affected the children (see, a contrario, Elsholz, cited above, § 51).
127. Indeed, the decision appears to indicate that the main reasons for revoking contact were the unsuccessful visits and the wishes of the three children, who were at the time around five, seven and eleven years of age. In this connection, the Court finds it important to reiterate that while its case-law requires children’s views to 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 (see K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017); such interests normally dictate that the child’s ties with its family must be maintained, except in cases where this would harm the child’s health and development (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010). The Court has already held that if a court were to base 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 a loyalty conflict and/or their exposure to the alienating behaviour of one parent – such a decision could run contrary to Article 8 of the Convention (see K.B. and Others, cited above, § 143 and Zelikha Magomadova v. Russia, no. 58724/14, § 115, 8 October 2019).
128. In the present case, the Court is not convinced that the Family Court gave relevant weight to any other factors, particularly in the absence of an expert report, which although requested on 2 November 2018 had not been delivered by the time of the decision (see paragraph 29 above) (see, a contrario, Suur v. Estonia, no. 41736/18, § 89, 20 October 2020). Moreover, there is no doubt that the children were severely conditioned by their mother, as repeatedly established by the experts and AA, as early as 2017 (see paragraph 16 above). The Family Court, however, heeded their wishes, eliminating any contact for what was meant to be six months but eventually went on for much longer. Moreover, it did not allow any other form of contact, be it by messages or skype (see, a contrario, Surr, § 98) which had previously been requested by the first applicant and rejected by the FamilyCourt (see paragraph 27 above). In these circumstances the Court finds that the domestic decision of 6 December 2018 severing ties was not based on relevant and sufficient reasons.
129. The Court considers that other decisions delivered in the proceedings raise issues under this aspect, as, for example, the decision of 6 December 2019 refusing the first applicant’s requests for extended contact over the Christmas period, which was rejected on the basis of “some of the reasons in the reply” (see paragraph 48 above). However, bearing in mind these findings, it does not consider it necessary to examine each and every one of those decisions.
(iii) The decision-making process
130. Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on relevant considerations and is not one-sided, and hence neither is, nor appears to be, arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision‑making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 (see W. v. the United Kingdom, 8 July 1987, § 62, and 64 in fine, Series A no. 121; see also Moogv. Germany, nos. 23280/08, and 2334/10, § 75, 6 October 2016; and Suur, cited above,§ 82). In conducting its review in the context of Article 8, the Court may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings. An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (ibid., § 65; see also H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120). It is of paramount importance for parents to always be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which is at the disposal of the domestic courts (see Sahin v. Germany [GC], no. 30943/96, § 71, 8 July 2003, and Kosmopoulou v. Greece, no. 60457/00, § 49, 5 February 2004).
131. The Court notes that for the most part, throughout the entire proceedings before the Family Court, the first applicant was allowed to put forward all his arguments, expert reports, as well as studies. He repeatedly made requests which were heard by the domestic court and were often upheld. The majority of those requests were heard in a timely manner, given the circumstances, often in less than a month (see, as examples, paragraphs 19, 21 and 25, 22 and 26, 27, and 28).
132. However, the procedure leading to the decision of 6 December 2018 was not made in reply to any request by the parties, and no submissions from the parties had been requested prior to that decision. Moreover, the content of the children’s statements was not made available to the first applicant, for comment, before the decision. Following the decision, the first applicant’s request for such information was denied, on the basis that the children had only been “heard”, but they had not “testified” (see paragraph 34 above). In consequence it cannot be said that the first applicant had access to all relevant information which was at the disposal of the domestic court.
133. The Court notes that the applicants raised other matters capable of raising an issue under this aspect, as, for example, the duration of the constitutional redress proceedings, with which the Court has already taken issue (see paragraph 93 above), nevertheless, the Court does not consider it necessary to examine each and every one of them.
134. Bearing in mind the above considerations, the Court finds that there has been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
135. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
136. The applicants sought long-term reunification and an end to the ongoing breaches suffered and asked the Court to give guidance about meaningful access. They further considered that the State had to take general measures to address the problems arising from the law, administrative practices and judicial remedies, to ensure that neither them nor other individuals fall victim of these failings in future.
137. The applicants made no claim for pecuniary damage, but they claimed 5,000 euros (EUR) in respect of the first applicant and EUR 6,000 each in respect of the minor applicants in non-pecuniary damage for the suffering endured and the long-term consequences arising from the violation.
138. The Government submitted that a finding of a violation constituted sufficient just satisfaction.
139. The Court reiterates that subject to monitoring by the Committee of Ministers, the respondent State in principle remains free to choose the means by which it will discharge its obligations under Article 46 § 1 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 88, ECHR 2009, and Bondavalli v. Italy, no. 35532/12, § 91, 17 November 2015). Nevertheless, the Court refers to its findings about the need to act in a timely manner (see paragraph 123 above) and, in the circumstances of the present case given the urgent need to bring the violation to an end, invites the authorities to examine the applicants’ situation speedily and take the relevant action without further delay bearing in mind the findings in this judgment (see, mutatis mutandis, Haddad v. Spain, no. 16572/17, § 79, 18 June 2019).
140. The Court further notes that it has not had the opportunity to examine in detail the relevant legal framework, as a result it has not found a breach on that basis, which would allow it to order general measures.
141. Lastly, it considers that the impossibility for the first applicant to maintain meaningful contact with his children, the remaining applicants, must have caused them frustration and suffering and certainly prevented them from developing relations over a period of years. Accordingly, it awards the sums claimed, in non-pecuniary damage. In respect of the four minor applicants the award is to be held in trust for their benefit (see, mutatis mutandis, M.D. and Others v. Malta, no. 64791/10, § 94, 17 July 2012).
B. Costs and expenses
142. The first applicant claimed EUR 193 in respect of postal and administrative costs and expenses incurred before this Court. He also requested the Court to award him a sum it may consider appropriate for the time spent in preparing the case, in which he was self‑represented.
143. The Government submitted that only costs for which receipts had been issued should be awarded and that no costs for self-representation were due.
144. The Court awards the first applicant EUR 150 in respect of costs and expenses before this Court, plus any tax that may be chargeable tohim.
C. Default interest
145. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) EUR 5,000 (five thousand euros) to the first applicant and EUR 6,000 (six thousand euros) to each of the remaining applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 150 (one hundred and fifty euros), to the first applicant, plus any tax that may be chargeable to him, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Invites the authorities to examine the applicants’ situation speedily and take the relevant action without further delay bearing in mind the findings in this judgment;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila Teplán Alena Poláčková
Acting Deputy Registrar President