April 29, 2010
The bulk of the cases appearing before the European Court of Human Rights concern length of proceeding cases that might not always be interesting for the public because of their technical character. However in a lot of other cases, the Court is confronted with very shocking facts. Cases of torture by public authorities, but also cases concerning everyday problems, like divorcing couples and consequently the custody of the children. This is also the case in Mustafa and Amargan Akin v. Turkey.
Mustafa Akin is a Turkish national, father of Armağan and Damla Akin. In 1999 his wife instituted divorce proceedings and the couple was divorced in 2000. The wife asked for the custody of both children, but was only accorded custody of her daughter, while the applicant was accorded custody of his son. The two kids were only exchanged for some – very short – periods during the year, especially around dates of festivities. The applicant requested the national Court to adapt this custody rules, by granting him the custody over both children for one weekend and to his wife the other weekend. That way, the children would have the opportunity to spend some time together as now there is no contact between them, even though they live in the same neighborhood. The children were prevented by their mother to speak to each other.
Several requests by the applicant were rejected by the national courts. Before the European Court of Human Rights, the applicants complained that the decision of the domestic court preventing the two children from seeing each other infringed their right to respect for their family life.
The Court of course found a violation of article 8, reiterating its principle that “the mutual enjoyment by parents and children of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention”. The Court also expresses “being struck” by the fact that the domestic court separated the two children, even if this was not requested. The mother initially asked custody over both children.
What is very interesting about this case is the voice given to the children. The Court does not only judge in the best interest of the child, willing to protect the children, but it also expects that the voice of the children is heard in custody matters. The Court states literally: “an assessment of the quality of the decision-making process requires the Court to establish (…) whether the interested parties, including the children themselves, were able to express their views”. Subsequently, the conclusion of the ECtHR was the following: “the Court observes that the Ödemiş Court did not only fail to seek the opinion of the children but also failed to base its decision on any evidence, such as psychological and other expert assessments, despite the fact that it was informed by the applicants that the situation had been causing them psychological problems”. This is a clear signal to national authorities that they should not decide about custody arrangements above children’s heads.