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Family Law

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23 JUN 2005

HUMAN RIGHTS: Zawadkaw v Poland (Application no 48542/99)

(European Court of Human Rights; 23 June 2005) [2005] 2 FLR 897

A father complained that he had received insufficient assistance from national authorities which meant his contact rights had not been enforced and that this violated the European Convention for the Protection of Human Rights 1950, Art 8. The European Court of Human Rights held, by four votes to three, that Art 8 had been violated. The obligation of the national authorities to take measures to facilitate contact with a non-custodial parent was not absolute. The key consideration was whether, in relation to facilitating contact, the authorities had taken all the necessary steps that could reasonably be demanded in the circumstances of each case. The court's decision that the contact agreement could not be enforced because it provided that the child spend every second weekend with the father, was not fully persuasive and was an insufficient ground to refuse him assistance in vindicating his contact rights. While co-operation with judicial bodies was an indicator of due regard for the childs best interests, lack of such co-operation was not necessarily a relevant factor in justifying the limitation or removal of parental rights. The applicant's alleged failure to pursue legal remedies to ensure effective contact could not justify the limitation and subsequent removal of the applicant's parental rights. An unmotivated refusal of assistance by a state authority vested with the powers to assist the parties to family and custody cases in obtaining effective compliance with orders with respect to contact was incompatible with the positive obligations of the State under Art 8. The domestic court had failed to weigh the interests involved in respect of the parental rights proceedings so as to strike a fair balance between the mother's right to travel and the applicant's right of contact with the child. A lack of co-operation between separated parents did not exempt the authorities from their positive obligations under Art 8. Instead, it imposed an obligation to take measures that would reconcile the conflicting interests of the parties, bearing in mind the best interests of the child. The failure of the authorities to take practical steps to encourage co-operation between the parents with respect to contact and secure appropriate assistance from competent state agencies resulted in the applicant losing contact permanently with the child. The authorities had thus failed in their positive obligation to provide the applicant with assistance in effectively enforcing contact and his parental rights. Judges Birsan, Garlicki and Myjer in their dissenting judgments stated that the court should be extremely reluctant to second-guess, with hindsight, the assessment made by the domestic authorities in matters of parental custody and contact. The applicant was not entirely blameless as he had twice taken the child away from the mother, did not comply with repeated court orders to reveal the childs residence, made it impossible for the mother to have contact and it was only after several court warnings that he was deprived of parental rights. The far-reaching limitation of the applicant's parental rights was justified as he had shown a complete disregard for the childs well-being. Refusal to force the father's contact rights once the child had been returned to the mother was justified on the basis that the parents were unable or unwilling to communicate in a rational manner and the child's interests required that he not be exposed to a bitter parental dispute. The domestic authorities could not have been expected to warn the father that the mother and child were going abroad and could not be blamed for situations where both parents had demonstrated an unwillingness to comply with court orders and where they had tried everything to prevent the other from seeing the child.

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