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21 SEP 2006

HUMAN RIGHTS/CARE: Moser v Austria (Application No 12643/02)

(European Court of Human Rights; 21 September 2006) [2006] 2 FLR (forthcoming)

The child was removed from the mother, a Serbian national, at birth on the basis that the mother could not provide suitable accommodation for the child, and because the mother's residence status in Austria was uncertain. The child was placed with foster parents and the mother had limited contact with the child. The mother complained that the authorities had made no attempt to help her with housing, residence or contact with child. She claimed that she had been insufficiently involved in proceedings and had had no access to court files. She also complained that there had been no public and oral hearings in the custody proceedings and that the courts' decisions had not been pronounced publicly.

There had been a failure to explore arrangements which would have allowed the mother and child to remain in close contact while proceedings were pending. In reaching its decisions, the domestic court had relied on reports not served on mother and which she had no opportunity to challenge. Also the appeal proceedings had been conducted without holding any hearing. In these respects there had been breaches of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). The failure to give the mother an opportunity to comment on the official reports, the failure to hold a public hearing and the failure to pronounce publicly the judgments in the proceedings constituted violations of Art 6(1) of the European Convention.

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