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Family Law

The leading authority on all aspects of family law

06 FEB 2012

CONTACT: Kopf and Liberda v Austria (Application No 1598/06)

(European Court of Human Rights; 17 January 2012)

The 2-year-old child had been removed from his mother after she set fire to their home after drug use and both had to be rescued. The child remained with foster parents for 46 months and they applied to adopt him. The mother recovered, was allowed access and tried to regain custody. The foster parents applied to have contact with the child. The Austrian civil code provided that the court could grant contact to third persons if failure to do so would endanger the child's well-being. It was evident the child was vehemently opposed to contact and had re-established a good bond with his mother.  He had not been in contact with the foster parents for 3 years. The regional court and supreme courts dismissed the foster parent's appeals on Art 8 grounds.

The Austrian courts had failed in the procedural requirement implicit in Art 8 to deal diligently with the request for contact. Proceedings had lasted 3 1/2 years during which time the foster parents had no contact with the child and he had re-established the relationship with his mother. That delay had a direct adverse impact on the foster parents: at the start of proceedings the welfare officer was recommending contact but at the conclusion of proceedings the district court found that if the proceedings had been concluded earlier there would have been good reason to order contact.

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