The complete deprivation of the mother’s communication from her children, even if the latter deny contact, is a direct violation of the right to family life
JUDGMENT
Κ.Β. κ.α. v. Croatia 14-3-2017 (no. 36216/13)
SUMMARY
Right to family life. Communicating between mother and children. National authorities have an obligation to ensure that children communicate with their mother regardless of the child’s negation. The appeal was filed on behalf of the mother, but also for her two minor children and the case concerns the communication between KW and her children. Initially, the mother had custody of the two sons, and then, from 2011, she got the right to communicate with her children. But the mother, however many times she tried to get in touch with her children, came confronted with the negation of the children and had sincerely lost contact with them. An expert opinion was conducted in 2015, which showed that the alienation and refusal of the children to communicate with their mother was the result of their father’s negative attitude towards her. The ECtHR ruled that the failure of the national authorities to ensure that the mother’s communication with her children had violated the right to respect for family life.
COMMENT
This decision is very useful for many parents who are prevented from communicating with their children by the parent who has the custody under the guise of children’s denial of communication. The Court makes it clear that national authorities have an obligation to ensure communication.
PROVISION
Article 8
PRINCIPAL FACTS
The application is brought by K.B. on behalf of herself and her two children. All three are Croatian nationals and were born in 1968, 2001, and 2005, respectively. The case concerned access arrangements between K.B. and the children.
The relationship between K.B. and the father of the children broke down. K.B. had custody of the children, whilst the father was given access rights. However, at the end of August 2010, the father disregarded a court order to hand over the children after the summer holidays. They have been living with him ever since. Though K.B. has tried to make contact on multiple occasions, they have repeatedly refused to see her, and she has never since been able to obtain proper access to them.
In the judgment on the couple’s divorce in April 2011, the father was given custody of the children, whilst K.B. was granted contact rights on a fortnightly basis. However, these contact rights have never been enforced. K.B.’s access arrangements were varied in August 2012, but that order was also never enforced. In 2015 an expert opinion indicated that the children’s estrangement from their mother (and refusal to see her) was the result of their father’s negative attitude toward her. It also recommended referring him to psychotherapy, which was subsequently ordered by the court. Proceedings concerning K.B.’s contact rights appear to still be pending before the domestic authorities.
K.B. complained in particular that, by failing to secure regular contact with her sons, which had been necessary to maintain family ties between them, the domestic authorities had violated her rights under Article 8 (right to respect for family life) of the European Convention on Human Rights.
THE DECISION OF THE COURT
Violation of Article 8
Just satisfaction: 12,500 euros (EUR) (non-pecuniary damage) and EUR 3,780 (costs and expenses) megagear
