Last Updated on November 10, 2022 by LawEuro
Information Note on the Court’s case-law
Judgment 10.11.2022 [Section I]
Respect for family life
Disproportionate order by family court de facto preventing couple in stable relationship from living together to safeguard interests of child from mother’s previous marriage: violation
Facts – The first applicant married J. and a son, E., was born in 2006. Sometime after their separation in 2008, the first applicant began a relationship with the second applicant, and they started living together in Malta with E. They had a child together in 2016. In the meantime, in 2012 J. instituted proceedings before the Family Court concerning his access rights, in the context of which he raised the issue of the second applicant being present during his visits. A Children’s Advocate was appointed who submitted a report which was, however, not accessible to the parties. On 1 October 2015 the Family Court ordered that the first applicant was prohibited from seeing (therefore also living with) the second applicant in the presence of her child. The first applicant’s request to vary the order was dismissed.
The applicants instituted constitutional redress proceedings. The first-instance court invited the parties to make a concession to allow E. to be close to the applicants in the time after the birth of their child. It subsequently annulled the Family Court’s order finding that it had been made in Article 6 deficient proceedings, and also in breach of Article 8 as it had not been justified and had not been in the child’s best interests.
On appeal by the State, the Constitutional Court varied the first-instance judgment in part, considering that it was not necessary to examine Article 8, given the fact that the impugned decision had been annulled and the parties put in the “status quo ante”. It confirmed the violation of Article 6 in so far as it concerned the first applicant under the different aspects upheld by the first-instance court but annulled the part of the judgment concerning the breach found in relation to the second applicant.
Law – Article 8:
The Court limited its analysis to the applicants’ sufferance as a result of the separation from each other (in so far as they could no longer live together or meet in E.’s presence). For the applicants, a couple in a stable relationship, the possibility of continuing to live together was a fundamental consideration falling under the concept of family, just as much as that of a parent with a child. Thus, an order with the effect of preventing the applicants from living together constituted an interference with one of the essential aspects of their family life.
The impugned measure, which had been given in the ambit of post-separation proceedings related to care custody and access, had been in accordance with a law of sufficient quality and, in so far as it had been intended to safeguard E. from any possible harm, had pursued the legitimate aim of protecting the rights and freedoms of others. However, the Court considered that the measure had not been proportionate for the following reasons.
The domestic decision-making process had been flawed. There had been an inability to satisfy the relevant procedural requirements, some of which had been identified by the domestic courts. These included the entire lack of any meaningful involvement of the second applicant in the decision-making process; the limited involvement of the first applicant in so far as all her requests had been rejected, without giving her the possibility of adducing any evidence, or to challenge the Children’s Advocate report, the content of which had never been shown to her; and the lack of reasoning in the family court’s decisions. In the absence of any such reasoning the Court considered that the Family Court had failed to look into whether there had been any real and specific risk for the child and had overlooked relevant information that had been brought to its attention. In setting out the measure it had failed to conduct an in-depth examination of the entire family situation to allow for a balanced and reasonable assessment of the respective interests of each person. Even admitting that by issuing the decree the Family Court had been erring on the side of caution and acting ‘speedily’ in order to protect E., whose interests had been paramount, there seemed to have been no justification for the inaction during the subsequent years. In particular, when the Family Court had realised (from the report of the expert psychologist submitted in November 2015) that the order had no longer been necessary, it had failed to take any action at that stage or at any later point in time. It thus left in place the order, contrary to the positive obligation of the State to facilitate reunification as soon as reasonably feasible.
The decree de jure had remained valid for over four years, until the Constitutional Court confirmed the prior decision to declare the decree null and void. It appeared from the second applicant’s testimony in the constitutional redress proceedings that the situation had continued in practice until the birth of their child and thus de facto it had significantly affected the applicants for a little over a year. Nevertheless, the Court was of the view that the fact that, subsequent to that date, the applicants might have breached the order without consequences, did not mean that they had not suffered the alleged violation of Article 8 for the entire period until the constitutional redress proceedings had come to an end. In the absence of the revocation of the decree by the Family Court, or an interim decision by the constitutional jurisdictions, during such period the applicants could have been subject to any form of sanction or consequence and continued to suffer the anxiety as to whether they would ever be able to reunite legally.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 jointly to the applicants in respect of non-pecuniary damage.