Last Updated on November 2, 2019 by LawEuro
Communicated on 13 March 2018
FOURTH SECTION
Application no. 75950/14
Nicholas Thomas GARAI
against Hungary
lodged on 3 December 2014
STATEMENT OF FACTS
The applicant, Mr Nicholas Thomas Garai, is a Hungarian and British national who was born in 1968 and lives in London. He is represented before the Court by Mr Z. Dukkon, a lawyer practising in Budapest.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1994 the applicant married Ms B.G. The couple had one daughter, C.G., born on 7 February 1999. The applicant adopted Ms B.G.’s daughter, K., from another relationship. Until 2002 the family lived together in London. In 2002, after separation, the mother moved back to Szob (Hungary) together with the two children.
On 4 September 2006 the couple divorced and agreed on the custody of the children and on other parental rights. Their agreement, which was approved by the Vác District Court, placed the daughters with their mother and granted the applicant contact every other weekend and through regular telephone calls. According to the agreement C. would visit her father, who was at that time living in London, four times a year: first together with her mother and then, when she turned twelve, by herself. Furthermore, the applicant could spend two weeks of the summer holidays and every second public holiday with the children. According to the agreement, the applicant was entitled to take the children away with him during the visits, keeping Ms B.G. informed of their whereabouts.
Regular visits took place in line with the agreement until December 2009, following which the applicant was hindered in contacting the children.
The applicant lodged a request to change his contact rights in respect of C., while Ms B.G. initiated proceedings to restrict the applicant’s contact with his daughter. She also lodged a criminal complaint against the applicant, maintaining that during a visit on 24 October 2010 he had behaved aggressively towards her, causing C. a psychological trauma. As a result, in a decision of 3 December 2010 the Szob Guardianship Authority reduced the applicant’s contact with the child to the extent that his visits were to take place on the premises of the child protection services. In the further proceedings, the guardianship authority commissioned psychiatric expert opinions in respect of the parents and C. The criminal complaint was subsequently dismissed by a final decision of Dunakeszi District Prosecutor’s Office.
In the meantime, Ms B.G. requested the exclusion of the Szob Guardianship Authority from the proceedings, for bias. According to the mother, the applicant had tried to blackmail K. and the director of the guardianship authority to testify in his favour. The director of the authority also requested Ms B.G.’s exclusion, since she had lodged a criminal complaint against Ms B.G. for constant harassment. The mother also alleged that the applicant had sexually abused her daughter, K. She further maintained that the applicant had threatened to withhold child allowance if she informed the police about the incident.
On 3 May 2011 the Pest County Administrative Authority appointed the Vác Guardianship Authority to conduct the proceedings. The authority’s attempt to stabilise the relationship between the parties and to reach an agreement on the exercise of contact rights was unsuccessful.
By a decision of 30 June 2011 the Vác Guardianship Authority restricted the applicant’s contact rights with C. to every sixth weekend. In addition to those visits, it granted the applicant visits for every second day of every second public holiday and daily visits for the second half of the school holidays. Both parents appealed. The Pest County Administrative Authority overturned the first-instance decision and remitted the case to the Vác Guardianship Authority.
As of July 2011 the applicant’s attempts to contact C. via telephone failed, apparently because in the mother’s view it was up to the child to decide whether she wanted to talk to her father.
As a temporary measure, the applicant was granted the right to visit C. on 2, 3 and 4 September 2011. However, the visit did not take place because Ms B.G. did not let the applicant enter the house or go near C.
Ms B.G. has changed her and the children’s registered residence a number of times, and the ongoing proceedings have been transferred to various guardianship authorities. Thus, the enforcement proceedings initiated by the applicant were either suspended for lack of jurisdiction or for the authorities’ inability to reach the mother and C. at their registered address. According to the applicant’s submission, the mother and the children resided in Szob the whole time. Furthermore, the authorities acknowledged these changes, knowing but ignoring the need for his authorisation for any change in the children’s residence.
On 7 May 2012 the applicant initiated proceedings before the Vác District Court, requesting custody of C. As a secondary claim he sought the change of the contact arrangements. In the meantime, Ms G.B. withdrew C. from school, moved to an unknown place and was unreachable. The Vác Police Department initiated proceedings against Ms G.B. for endangering a minor.
On 21 May 2012 the Nagymaros Guardianship Authority granted the applicant visits for 25 May, under the supervision of the authority, for 26 May, under the mother’s supervision, and for 26 May, without any supervision. As it appears from the case-file, these visits took place in accordance with the authority’s decision.
On 27 June 2012 Ms B.G. informed the Nagymaros Guardianship Authority that she had moved to London, with the intention of settling there, without the applicant’s authorisation. The applicant, however, informed the relevant authorities several times that, according to his information and despite all the changes in their addresses, the child and the mother still resided in Szob. The applicant requested the guardianship authority to enquire whether the child was still living in Szob.
Similarly, in the course of the custody proceedings before the Vác District Court, the applicant asked the court to take measures to establish the child’s place of residence. According to the police report commissioned by the court, the mother’s house in Szob had been empty for months. In his submissions before the court the applicant doubted this, stating that during his visit to Szob he had seen K. in the house.
Since the applicant had no contact with his daughter, he requested the Vác District Court to issue an interim decision on the exercise of his contact rights. According to the court decision of 11 September 2012, the applicant was granted contact every sixth weekend, one day during every second public holiday and the first half of the school holidays. The court saw no reason for maintaining supervised contact, pointing out that during previous visits the applicant and his daughter had managed to establish a close relationship.
The applicant could not see his daughter on the first scheduled date on 5 October 2012 since nobody opened the door to him although, as the police confirmed, Ms B.G. and C. were at home in Szob. The applicant’s next attempt to see his daughter on 23 November 2012 was also unsuccessful. The applicant notified the guardianship authority of this.
On 23 November 2012 Ms B.G. requested the District Court to suspend the custody proceedings, on the grounds that criminal proceedings were ongoing against the applicant in the United Kingdom for child abuse.
On 22 January 2013 the Pest County Administrative Authority ordered the enforcement of the interim decision of 11 September 2012.
On 23 January 2013 the applicant was informed that the Crown Prosecution Service had reviewed his case and decided that no further action was to be taken in respect of the criminal proceedings concerning child abuse initiated by Ms B.G. in the United Kingdom.
On 6 September the Vác District Court appointed a guardian ad litem, since Ms B.G. had failed to appear at the court hearings or before the forensic expert.
On 26 September 2013 the Vác District Court issued an interim decision granting custody of the child to the applicant. The decision could not be enforced, since the mother’s and the child’s place of residence was unknown to the authorities. The mother was arrested on a warrant on 20 March 2014. The daughter was also found in the house in Szob. On 21 March 2014 she was temporarily placed in a child care institution by a decision of the Vác Police Department.
On 15 July 2014 the District Court appointed the applicant’s relative, Ms K.G., as the child’s guardian.
COMPLAINTS
The applicant alleges violations of Articles 6, 8 and 13 of the Convention on account of the domestic authorities’ failure to enforce his contact rights for a considerable period of time. He also complains that he had no remedy available to challenge the procedural decisions and inaction of the domestic authorities.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, have the authorities fulfilled their positive obligations under Article 8 to ensure the applicant’s access to his child and proper exercise of his parental responsibility?
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