This article was originally published in Lexology.
Child contact – is implacable hostility of one parent compatible with the right to respect for family life of the other?
Following parental separation, it can be very tempting for one parent (usually the one with whom the child is living most of the time) to want to move on from their ex-partner. Sometimes that extends to trying to exclude that person from the child’s life too.
As with many laws made about children, the courts are faced with difficult tasks in balancing the rights of the child with those of the parents. The wellbeing of the child is central to any evaluation of her future, so the law must listen both to the parents who know the child best but who are inevitably at odds with each other, and to experts such as child psychologists who have no bias. If the domestic courts cannot resolve things, what about an application under Article 8 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms, in respect to a perceived interference with the right to respect for family life?
On 28th April 2016, the European Court of Human Rights at Strasbourg issued a judgement on this very issue, in the case of Buchleither v Germany (Application no 20106/13).
The German domestic courts’ rulings
The unmarried parents had been arguing since the child was born in 2003, and the first application to court for contact was made by the father when the child was 10 months old. Whilst the mother agreed with contact some of the time, in fact she behaved so badly that this proved very difficult. So the father went back to court, to enforce the order for contact. Initially things improved with the help of a facilitator. But not for long. The court heard the child about the issues, and suspended the father’s contact in 2010.
In 2011 the Family Court heard both parents, the child (then aged 9), the child’s custodian ad litem and an opinion from a psychiatrist. 2 hours’ contact per fortnight was ordered. The mother appealed, and the father wanted to have regular information on the child in addition.
The issue had become intractable. The Court of Appeal decided that whilst the contact with the father was going well, the impact on the child of the conflict between the parents was very damaging. It suspended contact indefinitely. The child had said that she had only bad memories of the father, and did not want to be forced into contact. The Court recognised that the mother was to blame for this. “She saw rejecting her father as the only way to preserve at least her mother’s love”. The parents had to improve their communication before contact could be safely resumed. Mediation was proposed. Appeals were pointless, and the court stored its files.
A very sad story. In German Law (as in most of the Western World), a child is entitled to have contact with both parents, and they with her, unless it is not in her best interests. If there is no longer a risk, any order restricting contact must be cancelled. The default position is a yearly review.
Could Strasbourg help the father?
The father’s case went to the European Court, on the basis that the indefinite restriction was wrong in law. The Court agreed that the domestic court’s decision interfered with the father’s right to respect for family life, but then considered Article 8(2), which gives a let out to the court that the interference can be legitimate where it is regarded as “necessary in a democratic society”.
The task is to balance the rights of the parents with the rights of the child. Because the “child’s dilemma” could not be solved by a contact order, but only by the parents themselves, the Court declared itself satisfied with the decision making process. The domestic court’s decision did not overstep the margin of appreciate allowed to all domestic courts in such cases. The Court expressly noted the father’s right to start a new application for review of contact at any time, and that a review must be undertaken regularly at reasonable intervals, by the court’s own action.
So what can lawyers do?
The thrust of family law when dealing with children in England (as in Germany) is protective and therapeutic. But our legal system is adversarial. Given that setting, lawyers have to prepare our clients for the long view. Here are some steps that every client needs us to consider:
- At the first meeting, ask about communication between the parents and others in their families. Is there a history of difficulty or any instances of abusive behaviour?
- Consider mediation at an early stage. Prolonged court cases are tiring for everybody, and few people really want to disadvantage their child. But attitudes do harden over time, so refer to an experienced mediator, who is used to dealing with high-conflict cases.
- Make sure you know the local providers of parenting classes and of couple counselling and therapy. Who can supervise or support contact? The courts have power to order contact-related activities, so be ready with informed suggestions.
- Know your experts. Good psychologists and psychiatrists get booked up quickly, and many do not like doing forensic work for courts, as it is time consuming and rarely satisfactory.
- Act quickly and persevere. When the German case first went to court, and the mother showed her hostility, the child had not begun to speak. By the time of the Strasbourg judgement, her fear of conflict was highly influential.
Hunters incorporating May, May & Merrimaans