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Family Law

The leading authority on all aspects of family law

28 AUG 2007


(European Court of Human Rights; 12 July 2007)

After the child's birth, the mother established an intimate relationship with a man - the husband - which was tolerated by the wife. The mother's young child was frequently taken care of by the husband and wife, who had four children of their own. After the child had lived with the husband and wife for 3 years, on a settled basis, the mother reached an agreement with the husband and wife that the child should remain with them. However, the relationship between the adults deteriorated, and the mother's attempts to visit the child led to conflict. When the child was 7 the mother applied for the child's return. The court ordered, contrary to the expert recommendation, that the child remain with the husband and wife and undergo outpatient psychological treatment for severe personality disorders resulting from her abandonment by the mother. The child persistently refused to have any contact with the mother. When the child was 12 the mother again applied for the child's return, and, in the alternative, for access to the child. The court rejected the applications and withdrew the mother's custody rights. The court considered that it was impossible to force the child to have contact with the mother. The mother's appeal was dismissed, notwithstanding an expert report recommending that the child remain with the husband and wife but have supervised and gradually increasing contact with the mother. The second set of proceedings lasted until shortly before the child's majority. The mother complained that her rights under Art 6(1) and Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been breached, in that the length of proceedings had been unreasonable, and there had been no reason to deny her access to the child.

There had been breaches of both Art 6(1) and Art 8. Although the case had been a complex one, the regional court must have been aware by the second proceedings of the case's complexity, and of the problems likely to arise because of the enmity between the parties. This knowledge, and the fact that time was of crucial importance, placed the court under a specific obligation to take special precautions in order to prevent any unnecessary delays. Having regard to the fact that the proceedings were pending for 4 years before the regional court, there had been a failure to display special diligence. Although there had been relevant reasons for rejecting the mother's request that the child be returned, there had been insufficient reasons to justify excluding the mother's access to the child.

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