European Case Law

The European Court of Human Rights is the court of last resort and any decision made here where a participating state (including the UK) has laws that violate a human right then that participating state must change its domestic legislation to accommodate human rights law.

The European Declaration of Human Rights

Human Rights Act 1998

Human_rights_directions (guidance on quoting from the ECHR)

 

Important European Case Law in Family Law

CASE OF T.P. AND K.M. v UK

Case where an infant was removed from the mother’s care by the social services because of suspected child abuse.

The mother was kept uninformed throughout and a videotaped interview of the child by a psychiatrist was withheld.

83. The Court concludes that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the first applicant an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority’s failure to submit the issue to the court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of Article 8 of the Convention.

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110. The Court finds that in this case the applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect for family life and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy and there has, accordingly, been a violation of Article 13 of the Convention.

Case of A. v uk

Case of a stepfather caning his stepson, with considerable force as attested to by a paedetrician, leaving linear bruises on the calves and behind. The UK courts (by jury) deemed it to be reasonable chastisement and not assault. The European court overturned that decision.

Article 3 provides, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

It was deemed to be a violation of 3 in that “reasonable chastisement” is not a legitimate defence to “assault occasioning actual bodily harm”

B v UK

68. The foregoing reveals, in the opinion of the Court, an insufficient involvement of the applicant in the Authority’s decision-making process. The decisions of June 1978 and May 1980, in particular, were crucial for the future of P, whose placement with long-term foster parents and subsequent lack of contact with his mother were critical stages on the road to his adoption. They were thus patently decisions in which the applicant should have been closely involved if she was to be afforded the requisite consideration of her views and protection of her interests (see paragraph 64 above).
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As for the May 1980 decision, the Court discerns no reason – and none has been advanced by the Government – for not involving the applicant in it more closely. This failure is all the more striking since the determination of her access to P marked a reversal of the Authority’s policy, in that she had been allowed to visit the child regularly until the end of April 1980. Moreover, at the time of this decision there was evidence of a continuing and positive relationship between P and his grandfather, a figure on whom the applicant obviously placed great reliance (see paragraph 18 above).

69. In concluding that there had been a violation of Article 8 (art. 8) in the present case, the Commission also took into account the failure to ensure for the applicant appropriate access to P during the social workers’ strike from November 1978 to April 1979.
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In a case of the present kind, however, there will in the Court’s opinion be no possibility of a “determination” in accordance with the requirements of Article 6 § 1 (art. 6-1) of the parent’s right in regard to access, as analysed in paragraph 77 above, unless he or she can have the local authority’s decision reviewed by a tribunal having jurisdiction to examine the merits of the matter. And it does not appear from the material supplied by the Government or otherwise available to the Court that the powers of the English courts were of sufficient scope to satisfy fully this requirement during the currency of the care orders.

83. There was accordingly a violation of Article 6 § 1 (art. 6-1).

CASE OF Sahin v Germany

41. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9).

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65. 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 has recognised that the authorities enjoy a wide margin of appreciation when deciding on custody matters. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, para 49, ECHR 2000-VIII; and Kutzner, cited above, para 67).

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94. The Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of or within wedlock can be regarded as compatible with the Convention (see Mazurek v. France, no. 34406/97, para 49, ECHR 2000-II, and Camp and Bourimi v. the Netherlands, no. 28369/95, paras 37-38, ECHR 2000-X). The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship. The Court discerns no such reasons in the instant case.

95. There has accordingly been a violation of Article 14, taken together with Article 8, of the Convention.

Case of Elsholz v Germany

Case where parental alienation syndrome has not been considered as an explanation of the apparent rejection of the father by the child. The court makes reference to the research from the U.S. Which at that time was not considered by the German courts.

 

53. The combination of the refusal to order an independent psychological report and the absence of a hearing before the Regional Court reveals, in the Court’s opinion, an insufficient involvement of the applicant in the decision-making process. The Court thus concludes that the national authorities overstepped their margin of appreciation, thereby violating the applicant’s rights under Article 8 of the Convention.

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The Court, having regard to its findings with respect to Article 8 (see paragraphs 52-53 above), considers that in the present case, because of the lack of psychological expert evidence and the circumstance that the Regional Court did not conduct a further hearing although, in the Court’s view, the applicant’s appeal raised questions of fact and law which could not adequately be resolved on the basis of the written material at the disposal of the Regional Court, the proceedings, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 © 1. There has thus been a breach of this provision.

Case of Sommerfeld v Germany

Germany has a law:

31. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:

Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother…”
Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1,second sentence, applies by analogy. {NB Repealed by the Law on Family Matters of 1997.}

39. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9).

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96. The Grand Chamber, like the Chamber, notes that, in the instant case, the applicant was deprived by law of the possibility of lodging a further appeal against the Regional Court’s decision refusing access to his daughter. The possibility of a further appeal, to which a father not having custody of a child born in wedlock would have been entitled, was excluded on account of the applicant’s status as the father of a child born out of wedlock, and this difference in treatment was expressly provided for in former section 63a of the Act on Non-Contentious Proceedings

(see paragraph 36 above).

97. For the same reasons as those set out above in respect of the application of section 1711 § 2 of the Civil Code in the instant case, this difference in treatment cannot be regarded as compatible with the Convention.

98. Accordingly, there has also been a violation of Article 14 of the Convention, taken together with Article 8, in that the possibility of a further appeal in the access proceedings was excluded under section 63a of the Act on Non-Contentious Proceedings.

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3. As the Chamber rightly stated, the District Court which heard the child and the parents had only the psychologist’s rather superficial submissions to hand, which had been prepared in the context of the first set of proceedings two years previously; it did not have at its disposal any new psychological expert evidence in order to evaluate the child’s seemingly firm wishes. The procedural requirement to have up-to-date psychological expert evidence in order to obtain correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child would seem an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake. This procedural requirement is endorsed even more by recent research on the so-called parental alienation syndrome (“PAS”), which has been described by Richard A. Gardner in the American Journal of Forensic Psychology (2001, pp. 61-106) under the title “Should courts order PAS children to visit/reside with the alienated parent? A follow-up study”, and which has received an increasing amount of attention. Courts should therefore address the question whether parental alienation syndrome is present and what specific consequences such a syndrome could have on the child’s development and – as the Chamber put it – on the establishment of “a child’s true wishes”. It is also noteworthy that the psychologist who was heard by the District Court in the first set of proceedings in 1992 had tried to arrange a meeting between the applicant and his child, which, however, had been cancelled by the child’s stepfather (paragraph 16 of the judgment). It is true that the District Court judge, in the second set of proceedings, heard the thirteen-year-old M.,

who stated that she did not wish to talk to or see the applicant. However, since the last and only psychological expert opinion (a one-page submission) was submitted in April 1992, there was no other opinion about the truthfulness of the wishes expressed by the child and the question how far and how strongly she was influenced by her mother and her stepfather. To give the applicant the chance of effective participation in the proceedings, we would prefer to have adhered to the normal rule taken from Elsholz that an up-to-date psychological expert opinion is necessary to

evaluate the child’s statements and to establish whether she is able to make up her own mind. The statements of a ten- or thirteen-year-old girl, whether she is heard in court or not, cannot always be decisive or even indicative of her true wishes. In such a complex situation, where the alienation of the child from her natural father by the strong influence of her mother and her stepfather can be perceived, a more thorough approach has to be taken and an effective and genuine chance of participation has to be given to the natural father.

CASE OF B.B. AND F.B. v. GERMANY

A case where a child caught cheating in exams blamed his parents. She stated that she had been pressurised and beaten with a metal rod on the soles of the feet if she didn’t do well in her exams. Her brother when questioned gave the same account. There was no other corroborating evidence. The parents strenuously denied the allegations. No psychological assessment took place to determine the truthfulness of the allegations. After a year in care the parents were granted access. On the first access visit the children confessed that they had lied.

“51.  The Court further observes that the domestic courts, when deciding in the main proceedings, were not pressed to render an overly hasty decision once the children had been placed in the safety of a children’s home. The Court further observes that the German family courts, under section 26 of their Rules of Procedure (see paragraph 33, above), are under an obligation to carry out on their own motion all investigations necessary to establish the relevant facts and that the Government have not submitted any factual reasons which could have prevented the domestic courts from further investigating the facts before taking a decision in the main proceedings. Under these circumstances, and having regard to the serious impact the complete withdrawal of the applicants’ parental rights had on the family as a whole, the Court considers that the domestic courts, in the main proceedings, did not provide sufficient reasons for withdrawing the applicant’s parental rights.

52.  There has accordingly been a violation of Article 8 of the Convention.”