Child access denied as an actionable infringement of family life and privacy – Article 8 ECHR

Despite this post does not relate to media law it provides latest information about the use of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in cases when the parent who was entrusted with the custody unreasonably denies the other parent the access to child infringes the personal rights of the other parent, particularly his or her right to family life and privacy and therefore it is in the interest of media reporting about the new development.

The protection of personal rights claim might serve as an effective tool when the rights are repeatedly, intentionally violated or when there was such a flagrant violation when the parent even did not reflect the court orders. In the Czech republic the legal reasoning is stipulated by the Civil Code that protects the constitutional right to family life and privacy what is also the subject of the wide scope of the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In case when the state does not cover such a cause of action, the Article 8 recognizes the right and is directly applicable.

I. Introduction          

            The right of the child to have contact with both parents is guaranteed in a number of international treaties.[1] Usually, it is in the interest of the child to be raised by both parents. Parents have as well the right to see their children and educate them. Parents exercising access rights to their child realize their right to family life based on maintaining and developing mutual emotional, moral and social relations among close family members,[2] the rights and duties arising from their parental responsibility and their role in the child´s upbringing. If parents are not able to make an agreement about contact with their child, the court shall regulate it. The access rights regulation and its enforcement, however, use to be complicated in cases when relationships between parents are seriously disturbed. It regards the most delicate legal disputes in which hostage and victim of disagreements between parents is the innocent child.[3] Often one parent indoctrinates child against another parent in a way that child refuses this parent without any justification.[4] It is because of parents themselves why factual realization of access rights often fails. Parent who was not entrusted with the custody is in practice often unreasonably being denied access to his child by another parent. Refusing to allow parent contact with his child is an undesirable manifestation of conflict between parents. Parent who was awarded custody may this way intend to attach his child to himself or to hurt another parent. However, possibility of using coercive measures in this sensitive area is restricted and requires approach based on the utmost caution.[5] Although parent disposes of an enforceable judicial decision he often cannot get access to his child for a number of months or years even using usual legal means. Commonly becomes that parent denying access does not react on available means of legal protection and does not allow contact regardless of decision enforcement or threat of criminal prosecution. The passage of time, however, can have irremediable consequences for relations between children and parent who does not live with them.[6] When contact is after all realized, relationships between parent and his child are many times weakened or even torn.

II. Denying access to children in the decision-making practice of the European Court of Human Rights

            Denying access to children regards also a considerable part of cases against the Czech Republic before the European Court of Human Rights (“the ECHR“) in which the applicants, especially fathers, complained that they had been unlawfully denied access to their children by another parent.[7] In a number of its judgments the ECHR found that there had been a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the basis that the national authorities failed to comply with their positive obligations by not taking effective steps to enforce parental rights to contact with their child, depriving parents opportunity to bring-up their child or by the excessive length of the proceeding. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.[8] Article 8 includes a parent’s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This applies also to cases where contact and residence disputes concerning children arise between parents or other members of the children’s family.[9] Proceeding involving relations between parents and children must be held with the utmost care where the court must proceed quickly enough and systematically apply different means of the decision enforcement regulated by the national law.[10] Failing to comply with these obligations may constitute responsibility of the state for the violation of the right to respect for family life. The fact that the authorities’ efforts foundered does not, however, lead automatically to the conclusion that there was a failure to comply with positive obligations under Article 8 of the Convention.[11] The national authorities’ obligation to take measures to facilitate reunion is not absolute. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention.[12] What is decisive is whether the national authorities did take all steps that could reasonably be demanded.[13] This reasonability is always examined under certain circumstances of each case. It is for the national authorities to strike a fair balance between competing interests of all concerned in the custody enforcement proceedings, in particular children, their parents and the community.[14] Although failure to enforce parental access rights is often caused by not taking sufficient steps by national authorities, contact often fails to realize despite taking adequate measures. As declares the ECHR, national authorities are not omnipotent, especially when, in family matters, they have to deal with parents who are unable to overcome their animosity and disregarded their child´s interests.[15] Parent who was unlawfully denied access to his child then often gets to an unsolvable situation. He disposes of an enforceable judicial decision, enforcement proceeding is in progress, however, contact is not realizing or only sporadically according to the whim of another parent, or even after months of legal wrangle. Quite rightly, therefore, the question arises whether do exist any other effective means, which would at least indirectly coerce parent to respect judicial decision on custody and thus help another parent to realize his right to contact with his child and avoid flagrant violation of parent´s right to family life.

 III. Previous decision-making practice of the Czech civil courts

            Already in the past, there appeared opinion in the literature that denying contact with the child could be considered as interference with parent´s personal rights.[16] Action for invasion of privacy brought by parent who had been denied contact with his child has been so far used in practice rarely. One of the first judicial decisions which declared interference with the parent´s personal rights in such cases was the judgment of the Regional Court of the first instance in Brno from 14 January 2011 no. 24 C 69/2003. The claimant – father of the child – demanded compensation for non-pecuniary damage in the amount of 16,000,- CZK on the basis that the defendant – mother of the child – interfered with his personal rights when despite enforceable custody judgment did not allow him contact with his child from 2002 till 2007. The Court stated that the mother prevented claimant contact with his child over an extensive period of time for purely subjective reasons and despite the enforcement proceeding and imposing fines to the defendant. There were no objective obstacles that would justify denying contact but it was only subjective attitude and unwillingness of the defendant to allow father contact with his child.[17] The Court stated that the defendant unlawfully interfered with the claimant´s personal rights protected by Article 11 of the Czech Civil Code No. 40/1964 Coll., namely the right to respect for private and family life. Awarding monetary compensation under Article 13 (2) of the Civil Code justified regarding to criterions stated in Article 13 (3) not only with reference to the intensity of the detriment but also with regards to the circumstances of the arisen infringement, which was long-term and arbitrary. “Demanded amount of 16,000,- CZK is only a symbolic minimum that can be awarded to the claimant (reflecting court´s incompetence to exceed the petition) regarding also the case law of the ECHR concerning Czech fathers harmed by the Czech judiciary in their right to contact with their child where the amounts of higher order were awarded.“ 

            In the similar case the Municipal Court of the first instance in Prague in its judgment from 6 September 2012 no. 31 C 28/2012 stated that unjustified denying contact with the child constitutes an interference with the parent´s personal rights, specifically his right to family life. The claimant alleged that the defendant did not allow him regular contacts with his daughter for more than four months after her birth despite preliminary ruling which awarded him right to contact once a week for two hours. Under the claimant mother interfered with his right to respect for family life by not allowing him contact with his daughter. He claimed for an apology and monetary compensation in the amount of 40,000,- CZK. Mother requested that the claimant´s action be dismissed on the reason that contacts were not realized because of bad minor´s health condition. The Municipal Court stated that one of the personal rights protected in Article 11 of the Czech Civil Code is the right to family life including right to contact with the child and participating on its upbringing. “If one parent unjustifiably denies another parent contact with their child and thus in fact prevents him from exercising his parental responsibility he interferes with the personal rights of that parent, namely his right to respect for family life.“ This general postulate shall be, however, confronted with the special circumstances of each case. Thus even unjustifiable denying contact with the child may generally constitute interference with parent´s personal rights the Municipal Court in Prague dismissed the action as unfounded. The Court noted that although mother refused to allow father contact with the minor she did it with respect to objective reasons, especially due to the minors´ health condition. Therefore, the Court held that there had been no violation of father´s personal rights.

            When could be an action for invasion of privacy successful in similar cases?

 IV. Unjustified denied access to children as a breach of parents‘ personal rights

            According to Article 11 of the Czech Civil Code each natural person has the right to protection of his or her personhood, in particular of his or her life and health, civic honour and human dignity as well as of its privacy, name and expressions of personal nature. The protection of personality is based on the concept of the integrated rights and its aim is to secure the respect of all the personal right and general free development of each personal sphere.  It is a crucial elaboration of the Article 7, 8, 10, 11, 13 a 14 of the Czech Charter of fundamental rights and freedoms.  In this integrated concepts there are single component rights that ensure protection of individual rights of the natural person as a part of the inseparable physical and moral integrity. The list of the rights stated in the Civil Code is demonstrative.[18] One of the aspect of every single natural person is the right to privacy.[19] Right to privacy encompasses the protection of the family life.[20] From the subjective public rights perspective it is also protected by the Article 8 of the European Convention on Human Rights or by Article 10 par. 2 of the Czech Charter of fundamental rights and freedoms. Article 32 par 4 of the Czech Charter guarantees the parents the right to take care of the children and the right to raise them. The child is guaranteed by the same provision the right to ensure the parental custody and care. The Article 8 of ECHR primarily aims to protect the individual against the wilful infringement from the state, but is also imposes the state the positive obligation to effective respect of the family life. If there exists the family relationship, the state has a duty to act to ensure the development of this relationship and to adopt the appropriate measures to establish the contact with the parent and child.[21] The Civil Code protection of personal rights is a elaboration of the relevant constitutional principles. The Czech Constitution in Article 1 declares the Czech Republic as a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens. This respect of the democratic state for the rights is expressed by the list and concretization mainly in Charter and ratified international agreements.[22] The significant foundations of the private legal conception of the general personal right is stipulated also by the European Charter on Human Rights binding for the Czech republic since 18.3.1992.[23]

            The general courts have to take into consideration the streaming of the fundamental rights and constitutional values and provide them the wide and adequate protection and in case of the infringement of fundamental right to privacy and family life that concerns the intimate sphere of the individual, the protection has to be even intensified. These duties of the courts could be concluded from Article 1 par. 1 and Art. 4 of the Czech Constitution that ensures the judicial protection for fundamental rights.[24] Although the Charter primarily guarantees the fundamental rights as a subjective public rights and acts directly between an individual and public authority, in some cases the basic rights „stream“ into the general law. That is the case of the horizontal relationships, in the relationships that are not based on the superiority and inferiority, that is the relationships where the participants are equal.[25]

Be together is for the parents and child one of the elements of the family life also in case when the relationship between the parents fell apart.[26] The child has a right according to the Article 32 par. 4 of the Charter to realize the care just in this mutual relationship.[27] The as much as possible wide contact must be enabled, because it is mainly the time scope, in which the parent can influence the child verbally and non-verbally, the so called care of presence or model. It is therefore in the interest of the child  not to lose the contact with the parent.[28] The basic elements of the family life is the right to create, maintain and develop the relationship between the members of the family based on the emotional relation.[29] The family and family life presents the community of the person connected biologically, emotionally and derived also of property; the connections are maintained not only among living individuals, but it also concerns the transcendental life. The family life includes the social, moral, cultural relations but also the relations in the area of the care of the children.[30] If there is an infringement of these relations, it is an illegal infringement of the right to family life.

The European Court of Human rights emphasized that after the end of the coexistence of the biological parents, the rights of the other parent (who does not have the full parental care) does not come to end. The parent has the right to access to children. The aim of the Article 8 of ECHR is to protect the individual and his right to have a contact with the child.[31] In judgement Berrehab v. the Netherland the Court stated that the concept of family on which Article 8 (art. 8) is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to “family life”, even if the parents are not then living together.[32]Similarly in case Kosmopoulou v. Greece the Court holds that from the birth of the child there is relation between him or her and parents the family tie that cannot be destroyed, only in exceptional cases.[33]

The right to respect the private life includes the guarantee of self-determination in the sense of the basic decision making about him or herself, what covers also the decision about the arrangement of own life as an active self-realization element of private determination. As a passive sphere of the private life it could be regarded the private sphere that is immanent to the human mankind, especially human dignity, honour, good name and also internal need of the social contact and social integration. The family life as one of the part of the private life that encompasses the relationship between close relatives and the respect the private, family life has to include also the right to develop and maintain the relationships, so that the person is able to develop his or her own personality.[34] Among the rights arising from the protection of the family life is undoubtedly the right to have a contact with the child. As it follow from the ECHR case law, between the child and parent exist from the birth the bond of the family life that cannot be broken even when the parents has separated. The emotional, cultural, social and moral relations in the family are the  core part of the personality.[35] Whatever intervention that restricts the relationship and is not based on law is to be considered as a unjustified breach of personal rights.[36] This infringement of the family life is a ground for the right to seek the protection under the personal rights concept according to the civil law regulation.

The substantial conditions for the civil remedy for the damage caused by the violation of the personal rights set Article 13 of the Civil Code. The liability for the protection of personal right arise under three conditions. First there must be  the existence of the unjustified infringement capable to cause moral damage, secondly the existence of the moral damages caused to natural person and thirdly there is a causal connection with the infringement and damages on the personal rights. Even if only one of the condition is not met, the liability does not occur. In each of the situation one has to consider the intensity of the declared infringement and if the infringement oversteps the admissible intensity in such a way that it is no longer acceptable in the democratic society.[37] The Act does not define the intervention nor serve the forms of the infringement, the form might be passive or active one or even omitting of some duties might be considered as an infringement of the personal rights.[38]The infringement of the personal rights is unjustified if it is in contrary to the objective law. The violation must be assessed objectively with the consideration of the concrete situation, as well as to the person concerned.[39] The liability according to the Article 13 of The Civil Code is based on objective principle that does not require the fault of the infringing party.[40]

The unjustified denying of the  access to children meets the conditions set for the liability for a breach of parents‘ personal rights. If there is a relationship between the parent and a child than the denied access is a breach of the right to privacy of the injured parent. This violation of the privacy and family life caused the immaterial harm, that consists of the emotional harm in form of the loss of the company of the child. Such an emotional harm establishes the right to claim the protection according to the civil code in respect of personal right. Such a harm is not caused under the circumstances excluding the illegality of the breach, it means the cases when the breach is allowed or presumed, for example if the not realized contact is in the best interest of the child, either on the part of the child or parent. However it is up to the parent who is denying the access to prove that in the particular case there were circumstances that exclude the unjustified breach.[41]

            The parent whose personal rights were infringed is entitled in particular to demand that unlawful violation of his or her personhood be abandoned, that consequences of this violation be removed and that an adequate satisfaction be given to him or her, mainly in form of apology. If this moral  satisfaction appears insufficient due to the fact that the individual’s dignity or honour has been considerably reduced, the individual shall also have a right to a pecuniary satisfaction of the immaterial detriment. The amount of the satisfaction shall be specified by the court with regard to the intensity and circumstances of the arisen infringement to be a mean to adequate satisfaction that is also effective.[42] This form of satisfaction aims to reduce and compensate the impact of the harm.[43]  The intensity, nature and manner, the character, scope and duration of the infringement has to be taken into consideration. The bad faith of the infringer is an important element for the aggravated damages in sense of the satisfaction function of the damages, that means the stronger the bad faith his the higher damages has to be to compensate the injured person. In case of the bad faith the court has to express the criticism of this behaviour that is contra legem, against social and moral rules by means of the considerable amount of the pecuniary satisfaction.[44]

The parent who injures the constitutionally guaranteed rights of the other parent or the other constitutionally or by act protected values of the personal interests, has to be aware of being liable for these consequences. The long-term denied access or repeatedly denied contact causes considerable emotional harm. The court (judge) has a discretion in respect of the granted amount of the satisfaction, it has to take the concrete situation and the situation of the harmed person into consideration.[45] The court has to consider also the aim and function of pecuniary satisfaction in personal rights cases. Apart from the compensatory function, significant is its prevention function.[46] In case of the aggravated damages the bad faith has to be reflected and despite the delict law (civil tort law) precludes the use of the punitive damages, such an aggravated damages might be regarded as a sanction for the violation. The  pecuniary satisfaction is desirable as it could serve as an effective tool when the rights are repeatedly, intentionally violated or when there was such a flagrant violation when the parent even did not reflect the court orders.

 Conclusion

             The personal rights of the parent, mainly his or her private and family life might be violated by the ungrounded denying of the right to access to child. In such a situation the parent tis entitled to protect his right by means of civil claim protecting his personal right. This measure might become and effective tool in practice when the state enforcement fails. Each case is specific and the court has to take into consideration the concrete circumstances of the case, the best interests of the child and the nature of the violation. Such a sensitivity of the case requires the high standard of the court in respect of the decision making and justification.

JUDr. Eva Ondřejová, LL.M. * Trainee Barrister and external PhD. candidate at Charles University in Prague, Faculty of Law, Civil Law Department

JUDr. Zuzana Fabianová * Trainee Barrister in Slovakia and external PhD. candidate at Charles University in Prague, Faculty of Law, Civil Law Department