Delays in enforcement of a contact order violated article 8 of ECHR

“… the passage of time can have irremediable consequences for relations between the child and the parent who does not live with the child.” European Court of Human Rights.

An important judgment of the European Court of Human Rights this month found that the Slovak justice system had taken too long to enforce an order for contact between a mother and her son and had breached their rights in terms of Article 8 of the European Convention on Human Rights.

The mother who brought the case had seen her 10-year old son only once in five years, despite a court ruling in 2018 that she should see her son without his father being present at weekends and in the holidays. The order had been appealed twice by the father but had been upheld by the Slovakian regional court in 2022 and by the Slovakian supreme court in 2023.

In its judgment of 8th February 2024 (JANOČKOVÁ AND KVOCERA v. SLOVAKIA) the Court concluded that “the measures taken by the Slovakian courts were not as adequate and effective as could reasonably have been expected in the circumstances of the case for the facilitation of the reunion between the applicants.”

The Court assessed that (para 42): “… In relation to the State’s obligation to implement positive measures, for parents Article 8 includes a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family.”

The judgment stated, “What is decisive is whether the national authorities have taken all necessary steps to facilitate the execution of any order regulating contact that can reasonably be demanded in the specific circumstances of each case.”

“In this context, 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 the child and the parent who does not live with the child.”

The Slovakian Civil Code provides that the preliminary stage of the proceedings (i.e. the contact order) should be completed within six months of their commencement. Once the enforcement is ordered measures may be taken with a view to ensuring voluntary compliance, failing which forced enforcement is to follow. That enforcement didn’t happen.

The European Court therefore ruled that there had been a violation of Article 8 (right of respect for family life) along with Article 13 (right for an effective remedy before a national court). The mother and the child each were awarded 5000 euros in damages.

This judgment can be cited in Scottish courts both to support the importance of speedy decision making in child contact cases and also to argue that the court has to take effective steps to enforce such court orders. Although the Children (Scotland) Act 2020 doesn’t have set timescales for contact decisions, section 30 does include the statement, “When considering the child’s welfare, the court is to have regard to any risk of prejudice to the child’s welfare that delay in proceedings would pose.

That section – along with almost all of the 2020 Act – has not yet been implemented, so maybe the Scottish Government should have another look at Article 13 of the European Convention of Human Rights.

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