Failure to execute a decision regaridng the mother’s custody of her children until they reach adulthood! The inactivity of the state violated family life
Milovanović v. Serbia 08.10.2019 (no. 56065/10)
Child custody. Failure to execute a decision and state responsibilities. Violation of family life. Violation of fair trial the unreasonable length of the proceedings before the Constitutional Court.
The national courts irrevocably granted the exclusive custody of the two minor children to the applicant’s mother, whom their father had forcibly taken. The decision was never enforced because of the inaction of the State and of the enforcement court, and the applicant’s appeal before the Constitutional Court was adjudicated after almost 3.5 years. The applicant lost the right to custody in practice since the decision was not implemented until the children reached adulthood.
The Court notes that Article 6 § 1 imposes on the Contracting States the obligation to organize their judicial systems so that their courts can meet all the requirements of a fair trial, and this role also makes a constitutional requirement particularly important. Court to consider the nature of a case and its importance from a social point of view, such as child custody. It also held that the State, in accordance with the ECHR and its domestic law, had to assist in the enforcement of a custodial decision and, consequently, its inaction infringed the applicant’s right to family life.
Article 6 par. 1,
The applicant, Mirjana Milovanović, is a Serbian national who was born in 1964 and lives in Belgrade.
The case concerned her being unable to obtain custody of her children despite court orders dating
from 2003 in her favour.
Ms Milovanović split up from her husband in 2001, taking their children with her. However, in
January 2002 the ex-partner forcibly seized the children. From that time until October 2009 the
applicant had no regular contact with her children because of deliberate obstruction by her
ex-partner which led in turn to the children becoming alienated from her.
She won an interim order for sole custody in February 2003, and for a hand over of the children
within 24 hours, and a final judgment for sole custody in October 2005, with a prohibition on contact
between the ex-partner and the children for three months to enable them to restore their emotional
ties with her. Neither order was ever enforced. Over the years the applicant has had sporadic
contact with the children, who eventually stated that they preferred to stay with their father and
meet the applicant regularly. In the meantime the children turned 18.
Following an appeal by the applicant in February 2009, the Constitutional Court in May 2012 found a
violation of the applicant’s right to a fair trial as regards the length of the enforcement proceedings
for the final custody judgment of October 2005.
The applicant complained that the Serbian authorities had failed to take the necessary measures to
enforce the child custody decisions rendered in her favour, which had led to her being denied
contact with her children and being prevented from effectively exercising her custody and parental
rights since 2002. The Court dealt with this aspect of the case under Article 8 (right to respect for
private and family life).
Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicant also
complained about the length of the proceedings before the Constitutional Court.
THE DECISION OF THE COURT
The applicant further complained under numerous Articles of the Convention about the non-enforcement of the child custody-related decisions rendered in her favour. She alleged that, owing to the failure of the State authorities to take adequate measures to enforce the decisions, she had been denied contact with her children and prevented from effectively exercising her custody and parental rights since 2002.
The Court considers that the main legal issue raised by the application concerns the applicant’s inability to be reunited with her children and exercise her parental authority, meaning her right to respect for her family life.
The enforcement court, having adopted the relevant enforcement order, was under an obligation, both under the Convention and the relevant domestic law, to proceed of its own motion and with exceptional diligence. The task of the domestic courts was rendered more difficult by the respondent’s destructive behaviour of obstructing contact between the applicant and the children. The Court is mindful of the fact that custody and contact-related disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where one or both parents’ behaviour is far from constructive . However, a lack of intention to co-operate by one parent rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the children to have contact with both parents and be in the custody of the parent who was determined as the custodial parent.
However, the lack of intent to cooperate with one parent probably requires the authorities to take measures to reconcile the conflicting interests of the parties, keeping in mind the primary interests of the children in contact with and under the care of both parents. the parent to whom the custody was sought.
The Court notes that no procedural measures have been taken in the meantime in the course of the enforcement proceedings and that no attempt has been made to identify the defendant and to use a more coercive measure despite his clearly non-cooperative attitude or to establish contact with him or her. children to provide advice, mediation and preparation for the transfer of custody by adequate means.
The government provided no explanation for any of these periods of inactivity. The Court notes, however, that the public prosecutor charged the defendant with abduction of children on 27 May 2005.
No measures were even taken or even considered by the authorities to provide special assistance to children during a series of mobilizations and to encourage them to meet with the applicant, which could prepare them to establish contact and in particular in cases of custody. children under these conditions.
Having regard to the above observations, the Court finds numerous failures on the part of the respondent State to make the adequate and effective efforts, such as to take coercive measures if necessary, or the inability to enforce those which had already been imposed to respond adequately to the respondent’s defiance of the court orders and decisions of social services. The respondent was in effect allowed to use the judicial system and the above-mentioned delays to his advantage until the factual situation was sufficiently altered by the passage of time so as to allow for a reversal of the applicant’s custody rights through a separate set of judicial proceedings or for the manipulated children to decide for themselves .
Having regard to the facts of the case, including the passage of time, the best interests of the child, the criteria laid down in its own case‑law and the parties’ submissions, the Court considers, in conclusion, that, notwithstanding the respondent State’s margin of appreciation, the non-enforcement of the applicant’s custody rights, as awarded by the interim order and final judgment, amounted to a breach of her right to respect for her family life as guaranteed by Article 8 of the Convention.
Article 6 par. 1
The applicant complained that the length of the proceedings before the Constitutional Court had exceeded the “reasonable time” requirement of Article 6 of the Convention.
The Government contested that argument, emphasising that a more rapid examination of the case, despite its sensitivity, had not been and would not be possible in this or similar cases in view of the Constitutional Court’s excessive caseload of 6,000 pending cases. They also referred to the Court’s finding in the case of Janković v. Croatia , that proceedings before the Croatian Constitutional Court, which had lasted three years, eleven months and six days, had not been excessively long.
The Court observes that neither the complexity of the case nor the applicant’s conduct explains the length of the proceedings ; rather, the applicant’s case was not terminated earlier owing to the excessive caseload of the Constitutional Court. In this connection, the Court has repeatedly held that Article 6 § 1 imposes on Contracting States a duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. Although this obligation cannot be construed in the same way for a constitutional court with its role as guardian of the Constitution as for an ordinary court, this role also makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms .
Moreover, while the fact at stake for the applicant in the proceedings before the Constitutional Court was very important, the Constitutional Court, according to the Government, was unable to adopt and apply any priority policy in dealing with constitutional appeals and did not consider to do so including cases related to child custody. Therefore, the Government did not provide any evidence justifying the length of the proceedings.
There has therefore been a violation of Article 6 § 1 of the Convention
Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 5,300 (costs and expenses. echrcaselaw.com).