Prohibition of cohabitation of partners in the interest of the woman’s minor child from a previous marriage! Violation of respect for family life
JUDGMENT
N.V. and C.C. v. Malta 10.11.2022 (app. no. 4952/21)
SUMMARY
Cohabitation of couples in a stable relationship. Best interests of the child and positive obligations of the state for family reunification.
The applicants are in a stable relationship and have one child. The partner has custody of her first child from a previous marriage. Following an application by the child’s father for contact rights with the minor, the court prohibited the cohabitation of the applicants, judging that this would serve the best interests of the applicant’s child. The applicant and his partner did not participate as a party in this trial. The cohabiting couple sued for breach of family life and due process.
The Court pointed out that the mutual enjoyment between family members of each other’s company is a fundamental element of family life. Any interference must be in accordance with the law. The margin of appreciation to be given to the competent national authorities varies according to the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting the child in a situation which is considered to seriously threaten his health or development and , on the other hand, the goal of family reunification as soon as circumstances permit.
The ECtHR found that the cohabitation measure imposed on the applicants was not proportionate, for several reasons, including the failure to fulfill the relevant procedural requirements, i.e. the second applicant had not participated in the trial and the first applicant had not been substantially involved in the decision-making, as well as the lack of reasoning in the decisions of the national family court.
The ECtHR held that in the absence of a revocation of the decision during a period of 5 years, during which the applicants continued to suffer from stress and anxiety about whether they would ever be able to legally reunite, there had been a violation of the right to respect for family life ( article 8 of the ECHR).
It then ruled that, having established a violation of Article 8, there was no reason to consider the request for a fair trial separately, due to the non-participation of the second applicant in the judicial proceedings.
The ECtHR awarded 12,000 euros jointly to the applicants for moral damage.
PROVISIONS
Article 6 par. 1
Article 8
PRINCIPAL FACTS
The first applicant married J. and a son, E., was born in 2006. Sometime after their separation in 2008, the first applicant began a relationship with the second applicant, and they started living together in Malta with E. They had a child together in 2016. In the meantime, in 2012 J. instituted proceedings before the Family Court concerning his access rights, in the context of which he raised the issue of the second applicant being present during his visits. A Children’s Advocate was appointed who submitted a report which was, however, not accessible to the parties. On 1 October 2015 the Family Court ordered that the first applicant was prohibited from seeing (therefore also living with) the second applicant in the presence of her child. The first applicant’s request to vary the order was dismissed.
The applicants instituted constitutional redress proceedings. The first-instance court invited the parties to make a concession to allow E. to be close to the applicants in the time after the birth of their child. It subsequently annulled the Family Court’s order finding that it had been made in Article 6 deficient proceedings, and also in breach of Article 8 as it had not been justified and had not been in the child’s best interests.
On appeal by the State, the Constitutional Court varied the first-instance judgment in part, considering that it was not necessary to examine Article 8, given the fact that the impugned decision had been annulled and the parties put in the “status quo ante”. It confirmed the violation of Article 6 in so far as it concerned the first applicant under the different aspects upheld by the first-instance court but annulled the part of the judgment concerning the breach found in relation to the second applicant.
THE DECISION OF THE COURT…
Article 8:
The Court limited its analysis to the applicants’ sufferance as a result of the separation from each other (in so far as they could no longer live together or meet in E.’s presence). For the applicants, a couple in a stable relationship, the possibility of continuing to live together was a fundamental consideration falling under the concept of family, just as much as that of a parent with a child. Thus, an order with the effect of preventing the applicants from living together constituted an interference with one of the essential aspects of their family life.
The impugned measure, which had been given in the ambit of post-separation proceedings related to care custody and access, had been in accordance with a law of sufficient quality and, in so far as it had been intended to safeguard E. from any possible harm, had pursued the legitimate aim of protecting the rights and freedoms of others. However, the Court considered that the measure had not been proportionate for the following reasons.
The domestic decision-making process had been flawed. There had been an inability to satisfy the relevant procedural requirements, some of which had been identified by the domestic courts. These included the entire lack of any meaningful involvement of the second applicant in the decision-making process; the limited involvement of the first applicant in so far as all her requests had been rejected, without giving her the possibility of adducing any evidence, or to challenge the Children’s Advocate report, the content of which had never been shown to her; and the lack of reasoning in the family court’s decisions. In the absence of any such reasoning the Court considered that the Family Court had failed to look into whether there had been any real and specific risk for the child and had overlooked relevant information that had been brought to its attention. In setting out the measure it had failed to conduct an in-depth examination of the entire family situation to allow for a balanced and reasonable assessment of the respective interests of each person. Even admitting that by issuing the decree the Family Court had been erring on the side of caution and acting ‘speedily’ in order to protect E., whose interests had been paramount, there seemed to have been no justification for the inaction during the subsequent years. In particular, when the Family Court had realised (from the report of the expert psychologist submitted in November 2015) that the order had no longer been necessary, it had failed to take any action at that stage or at any later point in time. It thus left in place the order, contrary to the positive obligation of the State to facilitate reunification as soon as reasonably feasible.
The decree de jure had remained valid for over four years, until the Constitutional Court confirmed the prior decision to declare the decree null and void. It appeared from the second applicant’s testimony in the constitutional redress proceedings that the situation had continued in practice until the birth of their child and thus de facto it had significantly affected the applicants for a little over a year. Nevertheless, the Court was of the view that the fact that, subsequent to that date, the applicants might have breached the order without consequences, did not mean that they had not suffered the alleged violation of Article 8 for the entire period until the constitutional redress proceedings had come to an end. In the absence of the revocation of the decree by the Family Court, or an interim decision by the constitutional jurisdictions, during such period the applicants could have been subject to any form of sanction or consequence and continued to suffer the anxiety as to whether they would ever be able to reunite legally.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 jointly to the applicants in respect of non-pecuniary damage.
