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Family Law

The leading authority on all aspects of family law

04 DEC 2008

CONTACT/HUMAN RIGHTS: Adam v Germany (No 44036/02)

(European Court of Human Rights; 4 December 2008)

For the first 3 years of life the child was cared for in the main by the paternal grandparents. After the parents' separation the mother was granted custody of the child. Thereafter the mother placed considerable barriers in the way of contact with the father and with the grandparents. The father and the grandparents obtained contact orders from the court, but were unable to enforce the contact ordered, ultimately because the court was not prepared to make the child have contact in the face of the child's objections. After over 4 years of court proceedings, the father and grandparents complained about the length of proceedings, arguing that their right under European Convention on Human Rights, Art 6.1, had been breached.

Although it was true that the access proceedings had been complex, in the father's case there had been several periods of inactivity by the court, notably a delay of 8 months, followed by a delay of 6 months. Given the importance of what was at stake for the father, namely the possibility of having contact with his young son, the domestic courts had been under a duty to exercise exceptional diligence. In view of the avoidable delays there had been a violation of Art 6.1 in the father's case. The grandparents' case had also been complex, and the grandparents themselves had been responsible for some significant delays, but the court had once again been responsible for considerable delays, notably one of 4 months, one of 7 months, and one of 9 months. These delays had been caused in part by the father's concurrent contact proceedings, which involved the reciprocal dispatch of case files; domestic courts should consider the possibility of having copies made to avoid delays caused by the dispatch of the case file. These proceedings had involved the access rights of grandparents to a young child who had lived with the grandparents for the first 3 years of life, and should, once again, have been dealt with exceptional diligence. Having regard to the delays attributable to the domestic courts, the proceedings had not been concluded within a 'reasonable time' and there had been a violation of Art 6.1 in the grandparents' case.

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