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Family Law

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Court of Protection Practice and Procedure Conference 2016

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14 APR 2009

CONTACT/HUMAN RIGHTS: Felbab v Serbia (No 14011/07)

(European Court of Human Rights; 14 April 2009)

After the Serbian parents separated the Serbian court granted the mother custody of the two children, and granted the father staying access two weekends every month, plus 21 days spread over the school holidays. The mother failed to comply with the contact element of the order, and the court issued an enforcement order, followed, some years later, by a fine. Over the course of many years the father continued to complain that the mother was denying him access. However, the Social Care Centre first informed the court that the father had not contacted them, and had not shown any initiative to see the children, and later noted that the contact arrangements had failed because of the children's attitude as well as that of the mother. The mother was nonetheless ordered to pay costs of the enforcement action, and to comply with the court order. Contact between the children and the father was re-established on an informal basis about 5 years after the original order, and at times the children came to live with him, until removed by the authorities. When the enforcement proceedings were terminated the father complained to the ECHR that the Serbian authorities, in failing to enforce the contact order, had breached his right to a fair hearing within a reasonable time, under Art 6, and his right to respect for family life, under Art 8.

The final contact order had remained unenforced for over 7 years, during which time the court had merely imposed one fine on the mother, and ordered her to pay costs. The court had failed to make use of any coercive measures, despite the mother's clearly uncooperative attitude. Therefore, even though the father had seen the children informally at times, the Serbian court had failed to take sufficient steps to execute the contact order, and there had been a breach of Art 6. Also, the Serbian authorities had failed to do everything in their power that could reasonably have been expected of them to support the father's rights under Art 8. The father's legitimate interest to develop and sustain a bond with the children, and their own long-term interest to the same effect had not been duly considered. One judge gave a dissenting judgment, in which he rejected the father's claim on the basis that: the father had not been sufficiently active in seeking contact via the social care centre; the children had been having informal contact with the father; the father had himself been in breach of the court's orders, in allowing the elder child to live with him at times; and various criticisms could be made of the father's general conduct.

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