The inability of social welfare authorities to provide appropriate help to overcome the children’s refusal to communicate with their father violated the right to respect for family life
JUDGMENT
A.V. v. Slovenia 09.04.2019 (no. 878/13)
SUMMARY
Father and child communication. Negative attitude of children to get in touch with their father. Judicial deprivation of the father of three children of his right to communicate with them. Ineffectiveness of the work of social welfare authorities that failed to ensure safe support of the children to get acquainted with their father and to provide appropriate assistance to parents to assess the best interests of their children. No fair balance of rights between the authorities and non-fulfillment of their positive obligations under Article 8 of the Convention. Violation of the right to protection of family life
THE IMPORTANCE OF THE CASE
Important decision regarding the refusal of children to contact their father. The Court, with this decision, determines the positive obligations of the state to the issue of communication between the parent and especially the father and his children. Authorities (social services, courts) have to find ways to overcome the denial of juvenile children to communicate with the father. There is no justification for abolishing parental communication with children.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Mr A.V., is a Slovenian national who was born in 1961 and lives in Ljubljana.
The case concerned domestic court decisions to remove the applicant’s right to have contact with
his children and the work of the welfare authorities.
Following their separation, the applicant and his former wife, M., in November 2002 concluded an
agreement on contact arrangements with his three children. Problems with regard to its
implementation arose in June 2006. Consequently, the applicant had no contact with his children
between July 2006 and November 2008.
In court proceedings initiated by the applicant in July 2006 a court-appointed psychiatrist submitted
that the children found contact with their father unpleasant and refused it. In April 2008 the District
Court granted the applicant regular contact once a week in the presence of a school psychologist. On
appeal, the Higher Court determined that contact should take place every other Wednesday in the
presence of an expert caseworker from the Social Work Centre who was to provide assistance in
establishing mutual trust between the applicant and the children. Subsequent contact sessions (11 in
total) only lasted a few minutes before the children left the room, stating that they did not want to
see their father. After four contact sessions that took place under the supervision of the Centre, the
Centre initiated court proceedings, seeking to modify or discontinue contact.
In June 2011 the District Court issued a decision discontinuing contact between Mr V. and his
children, finding that the sessions were no longer in the children’s best interests because they were
too traumatic. It further found it inappropriate to order family therapy involving the children. The
Higher Court dismissed an appeal by the applicant and a constitutional complaint was also
unsuccessful. The applicant lodged a complaint with the Inspectorate for Social Matters at the
Ministry for Work, Family and Social Matters. In August 2011 the Inspectorate issued an audit
report, which found a number of flaws in the Centre’s handling of his case. It ordered the Centre to
carry out several measures, which were implemented by April 2012.
Relying in particular on Article 8 (right to respect for private and family life) of the European
Convention on Human Rights, the applicant complained of a violation of his rights because of the
domestic courts’ decisions to end his right to contact with his three children, their refusal to order
family therapy, and because of the allegedly inadequate work of the welfare authorities.
THE DECISION OF THE COURT
Violation of Article 8
The Court draws attention to the fact that the reason why children deny communication with the applicant was their negative experience at meetings in the past. However, the ECtHR observes that the Center, which was specifically entrusted with the task of assisting the father and the children, did not take any action to deal with the facts of the national courts, since, according to that expert, it was the cause of the negative attitude of the children during their communication with their father. In addition, no help or advice was given to children to overcome alienation resulting from the fact that they had no contact with their father for more than two years.
Also, the meetings were not organized under conditions that encourage the improvement of father-child relationships. In particular, the sessions were held in a rather formal setting at the Center’s premises, lasted a few minutes and were completed when the children, who were clearly not prepared in any way, left the designated office with the social workers.
From the above it can be concluded that the Center had to deal with persistent child denial and the lack of active participation of the other parent, but failed to ensure the provision of real professional and targeted support to children, which was critical to them, to become accustomed to idea to communicate with their father. It also did not provide proper assistance to parents to assess the interest of their children.
The assistance of the Center, as determined by a judgment, is part of the specific circumstances of the present case and forms part of the necessary measures that the authorities should reasonably have taken in accordance with their positive obligations under Article 8. However, in this case, the above-mentioned measures, the social welfare authorities, after only four unsuccessful communications meetings, asked the Court to discontinue contact between the applicant and his children. The Kranj District Court and the Ljubljana Supreme Court followed the Center’s proposal and interrupted the applicant’s contact with his children on the grounds that forced coercive contact had caused children’s mental upheaval and could hurt their development.
As regards the applicant’s personal characteristics as a barrier to successful psychological treatment, the ECtHR considers that this finding does not appear to be based on any evidence. The psychiatric expert assessed the possible success of the treatment at 80%, without mentioning any change in the applicant’s behavior as a precondition for its application.
In the light of the above considerations, Strasbourg notes that in the present case the domestic authorities failed to strike a fair balance between the applicant’s right to respect for his family life and the aims invoked by the Government on the other and failed to fulfill the positive their obligations under Article 8 of the Convention. Consequently, there has been a violation of Article 8 of the Convention.
Just satisfaction: € 20,000 for non-pecuniary damage and € 3,700 for legal costs and expenses (echrcaselaw.com editing).
