Failure to exercise the communication rights of a father with his daughter for eight years due to the mother’s opposition violated the father’s right to family life

JUDGMENT

Luzi v. Italy 5.12.2019 (no. 48322/17)

 see here

SUMMARY

The applicant’s inability to exercise his right to communicate with his daughter due to the mother’s opposition.

The Court found that, in view of the mother’s opposition, which had been going on for eight years, the national authorities had not taken all the necessary measures to ensure that the applicant’s right to communicate with his daughter had been exercised. Violation of the right to family life

PROVISION 

Article 8

PRINCIPAL FACTS

The applicant, Valter Luzi, is an Italian national who was born in 1974 and lives in Mellaredo di
Pianiga. A daughter, G., was born on 21 April 2009 from his relationship with J.B.

After four months of cohabitation, J.B. left the family home with the child to live with her own
family. On 8 February 2010 Mr Luzi complained to the family courts about the difficulties he faced in
exercising his right of contact and applied for shared custody. In February 2011 the court decided to
restrict both parents’ parental responsibility in favour of the municipal social services. J.B. lodged an
appeal, which was dismissed by the court of appeal.

In December 2011 the social services reported to the court that such meetings as had taken place
had been very difficult because of the conduct of both parents. In February 2013 the social services
reported that the disputes between the parents were getting worse. On 21 September 2013 the
court was informed that the meetings between Mr Luzi and his daughter had been suspended. In
January 2014 the court decided to grant sole custody to the mother, in the child’s interests. In
December the court of appeal ordered J.B. to comply with the court’s decision and to respect the
schedules of meetings between the father and daughter.

In 2014 Mr Luzi was only able to visit his daughter on three occasions. In September 2015 the court
of appeal revoked the order granting the mother sole custody, replaced it with shared custody,
limited both parents’ parental responsibility and assigned custody of the child to the social services,
requesting that they report any violations of its decision to the guardianship judge and the
prosecutor’s office. From October 2016 onwards Mr Luzi was unable to meet his daughter on
account of the mother’s opposition and the child’s refusal. In February 2017 the social services
reported that the mother was manipulating the child in order to turn her against her father and
prevent any contact with him.

A criminal complaint lodged in May 2015 by Mr Luzi, seeking to have J.B. penalised for failing to
comply with the decision on his right of access was discontinued for lack of mens rea. A second
complaint was discontinued for the same reason.

THE DECISION OF THE COURT…

Article 8

The Court noted that from 2010, when the child was one year old, Mr Luzi had repeatedly requested
that the court organise meetings with his daughter, but that he had only been able to make scant
use of his right of access owing to the mother’s opposition.

The Court observed that the expert appointed by the court of appeal in 2015 had pointed out that
J.B.’s negative behaviour had prevented the child from forming a bond with her father, and that J.B.
had blocked all attempts at allowing contact between the father and his daughter. The court of
appeal had asked the social services to report any instances of non-compliance with the decision
granting right of access to Mr Luzi. The courts had never reacted to the reports submitted by the
social services criticising J.B.’s manipulative attitude and stating that the father was unable to
exercise his right of access to his child. In 2015, for instance, Mr Luzi had only had contact on two
occasions with his daughter, and that situation had continued up until 2018.

The Court acknowledged that the authorities had faced a very difficult situation stemming, in
particular, from the tension between the child’s parents. However, it considered that the domestic
courts had not taken the appropriate measures to ensure the necessary conditions for full
implementation of the father’s right of access to his child. When the parents had separated, the
domestic courts had failed to take the requisite immediate action to ensure proper contact between
the child and her father. For the subsequent eight or so years they had tolerated the mother’s
conduct, which had prevented the formation of any genuine bond between the father and his
daughter. During the court proceedings a number of automatic, stereotyped measures had been
adopted, devoid of any real effect. Nor had the social services properly enforced the judicial
decisions.

The Court observed that the authorities had taken no action against J.B. It considered that the
authorities had allowed a de facto situation to take hold, flying in the face of the relevant judicial
decisions. In the light of the eight-year period during which the mother had blocked the applicant’s
right of access, the domestic authorities had failed to adopt all the measures required to ensure the
implementation of his right to be in contact with his daughter. Even if the courts had based their
approach on protecting the best interests of the child, they had not achieved their aim, because nine
years on from the parents’ separation, the child’s relationship with her father was virtually nonexistent, in spite of all the domestic courts’ decisions.
In conclusion, the Court considered that the national authorities had not made the appropriate
efforts to ensure the implementation of the applicant’s right of access to his child and had breached
his right to respect for his family life.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicant 13,000 euros (EUR) in respect of non-pecuniary
damage and EUR 10,000 in respect of costs and expenses.


ECHRCaseLaw

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