Last Updated on October 20, 2022 by LawEuro
Information Note on the Court’s case-law
October 2022
Judgment 20.10.2022 [Section I]
Article 8
Positive obligations
Article 8-1
Respect for family life
Authorities’ failure to take measures re-establishing father’s contact with incapacitated adult son resulting in no contact for over two years: violation
Facts – In 1999 the applicant married A.R. and in the same year their son, D.B., was born. D.B suffers from Down’s syndrome. In 2001 the applicant and A.R. divorced and D.B lived with his mother. A guardian was appointed and the applicant maintained contact with his son. In October 2017 the applicant successfully applied to the District Court for an interim measure to regulate contact with D.B., as the following month D.B would reach the age of 18 and the appointed guardian would no longer exercise his functions.
In February 2018 the Regional Court declared D.B incapacitated and in May 2018 A.R. was appointed his guardian, but she refused to cooperate to maintain contact between the applicant and his son. On 4 October 2018 the District Court dismissed the applicant’s request for the regulation of contact with D.B. and quashed the decision imposing the interim measure. It held that the applicant was not entitled to request contact with his incapacitated adult son, referring to the Supreme Court’s resolution of 17 May 2018 to that effect. According to the latter, only the court-appointed guardian could request the family court to make the relevant arrangements. The applicant’s appeal was dismissed.
In February 2019 the applicant requested the District Court to change D.B.’s guardian and to regulate contact with his son. The court informed the competent prosecutor of the proceedings who also requested regulated contact between the applicant and his son. On 17 November 2020 the District Court granted regulated contact on the basis of the prosecutor’s request. It dismissed the applicant’s requests.
Law – Article 8: The Court dealt with the applicant’s complaints regarding the specific period between 4 October 2018 and 17 November 2020 where there had been no contact arrangements in place. As the applicant’s son was already an adult, the question arose whether “family life” had existed between them. The Court replied in the affirmative. After the divorce the applicant and his son had maintained regular contact throughout D.B.’s childhood and youth and enjoyed a father-son relationship. The applicant had continued to have contact with him after he turned 18, having taken the necessary steps by way of interim measure, until A.R. had been appointed as D.B.’s guardian and that measure had been lifted. Thus, even after he had reached the age of 18, D.B. had been part of the applicant’s core family. In view of the fact that D.B suffered from Down syndrome and was fully incapacitated there also existed “additional factors of dependence” between the applicant and his son, as the applicant was one of the close persons who could communicate with D.B.. Article 8 was therefore applicable.
It transpired from the domestic courts’ decisions and the Supreme Court’s resolution, that the applicant had not been entitled to institute proceedings for the determination of contact arrangements with his fully incapacitated adult son. The District Court which had examined the applicant’s first request had not informed the competent prosecutor of the ongoing proceedings. Likewise, it had not taken any action of its own motion. It was only with regard to the second request that the District Court had given notice of the proceedings to the prosecutor. However, both the courts and the prosecutor enjoyed full discretion in this respect and could choose not to intervene, without giving the interested party any reasons for their decision. Thus, the applicant had had nowhere to turn to ensure contact rights with his son as there was no regulatory framework in place to protect his family rights. Indeed, the Supreme Court’s resolution expressly excluded such a right.
There was no indication that the limitation in question had pursued any legitimate aim or could have been considered as “necessary in a democratic society” and the Court failed to see what competing interests had been at stake. The applicant, as the biological father with an established relationship with his son, clearly had had an interest to pursue the relationship once D.B. had entered adulthood, and there was nothing to suggest that this would not have been to his son’s benefit. He had not sought contact with his son against the latter’s will or sought forced contact in general but had sought proceedings to determine the scope and frequency of contact between them since A.R., had refused to cooperate.
The domestic courts, however, had not examined the applicant’s request at all. As a result, the applicant had been deprived of contact with his son for over two years. Time was an important factor in proceedings concerning children, since any delay might result in a certain level of alienation. The same was likely to happen in relation to a young adult person with severe mental disabilities.
Accordingly, the authorities had failed to discharge their positive obligation to take measures aimed at re-establishing contact between the applicant and his son. Even having regard to the State’s margin of appreciation, there had been a lack of any regulatory framework to protect the applicant’s right to his family life, in a situation where his adult son was fully incapacitated.
Conclusion: violation (unanimously)
Article 41: EUR 10,000 to applicant in respect of non-pecuniary damage.
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