By Evelyn Merckx, teaching assistant and PhD researcher at Ghent University
Children’s position during their parents’ separation remains a delicate matter. A variety of reasons can result in a child refusing contact with a parent in response to the challenging situation. Objective reasons can lead to the child’s decision, such as a parent’s aggressive or indifferent behaviour. However, it can also be the result of a smear campaign of the other parent. In the past, the European Court of Human Rights avoided to impose harsh obligations on the State Party to prevent a child alienating a parent. To prevent having to answer the question whether contact is in the best interests of the child in a given case, the Court mainly focuses on the State Parties’ procedural and positive obligations to adopt certain measures to regulate the relations between private individuals through the establishment of an effective regulatory framework of adjudicatory and enforcement machinery (amongst others: ECtHR, Stasik v. Poland, 2015, § 80). Steady case law examines whether the State Party adopted all necessary, relevant and sufficient measures that can be reasonably expected to facilitate contact between parent and child (amongst others: ECtHR, Bostina v. Romania, 2016, § 57) . Furthermore, the Court solely examines the parent’s right to contact with his or her child and hereby refusing to examine the child’s right not to be manipulated. K.B. and others v. Croatia seems to deviate from past case law, providing for a welcome change but entailing some risks as well.
Two young brothers, aged nine and five, refused to return home with their mother, the custodial parent. Their father was allowed to have his children reside with him for two months during the summer of 2010 and the mother was granted sole custody. The provisional judgment stipulated that the mother was entitled to visit their children in the home of the father, but she refused this given that the father lived more than 400 kilometres away. Her appeal procedure was eventually dismissed in May after the envisaged holiday period, based on the fact that she had not argued that the provisional contact measure was contrary to the interests of the children. In the meantime, she kept frequent telephone contact with them, though in August the children started refusing this. At the end of the holidays, the father did not return the children to their mother and no enforcement measures were taken because the Municipal Court had not issued any other decision temporarily regulating the contact issues for the duration of the divorce and custody proceedings. This entailed that the parents were to exercise joint custody and could not enforce their respective custody rights against each other as they both had the right to have the children live with them. Meanwhile, the children were treated by a psychiatrist, chosen by their father.
Initially, the children’s refusal was explained by the fact that they were reluctant to live in the hometown of their mother. However, their refusal persisted even after the definitive custody judgment that granted sole custody to their father, with contact rights for their mother. Prior to this judgment, a forensic expert had performed an expert evaluation of the father but was unable to evaluate the mother because she refused. The forensic expert had not interviewed the children. In May 2011 the Split Social Welfare Centre ordered the child protection measure of supervision of the exercise of parental authority in the family, aiming to establish unhindered contacts between the mother and her children. However, each time the mother tried to visit, they angrily resisted the meeting and behaved aggressively towards her. The contact rights of the mother were not being enforced, as it was established that the father had not been obstructing the exercise of her contact rights and because of the children’s strong resistance. The reasons for the children’s refusal were not examined until 2015, when a combined expert report established that both children’s estrangement from their mother was the result of their father’s negative attitude toward her.
Judgment and comments
This judgment slightly deviates from earlier case law of the Court for the following reasons: firstly, the Court positions the child’s right to be heard against the child’s best interests. The Court maintains that the child’s views, which must be taken into account and be given due weight, do not entail an unconditional veto power. The Court adds that the child’s views definitely cannot be followed automatically without any other factors being considered and an examination being carried out to determine their best interests. The Court abandons its former approach that avoided the determination of the child’s best interests and relied heavily on the child’s views. The Court stresses that “such interests normally dictate that the child’s ties with its family must be maintained, except in cases where this would harm the child’s health and development”. However, in previously decided cases the Court accepted that the child’s health and development were harmed if they showed great reluctance against meeting a parent. The Court’s approach here, putting the child’s best interests up against the child’s right to be heard, can provide risks for future judgments since no clear guidance is offered to authorities as to how to resolve this conflict. However, it does succeed in questioning the free will of certain children to express their views when they are suffering from a loyalty conflict and/or are unduly influenced by a parent. In this regard, the Court states that: “if a court would base a decision on the views of children who are palpably unable to form and articulate an opinion as to their wishes – for example, because of a loyalty conflict and /or their exposure to the alienating behaviour of one parent – such a decision could run contrary to Article 8 of the Convention.”.
Secondly, the Court offers a welcome change to the previous case law in which it stated that it can be counter-productive to force a child to maintain contact with a parent which it, for whatever reasons, resists (ECtHR, C. v. Finland, 2006, §57). In this case, the Court does not reiterate this principle, but instead holds that: “Article 8 of the Convention requires States to try to identify the causes of such resistance and address them accordingly.” This obligation is understood, correctly, as an obligation of means, not of result. The Court notes that there had been a delay of five years until the authorities obtained an authoritative opinion which was necessary for them to make an informed decision concerning .
Thirdly, the Court held that the authorities should take measures to reconcile the conflicting interests, keeping in mind the best interests of the child as “a” primary consideration instead of “the” primary consideration. In the past, however, there has been conflicting case law about whether the best interests of the child should be “the” or “a” primary consideration. It may seem that, in cases where children refuse contact, the Court may now chose to adopt the latter interpretation, in order to find a violation more easily and force State Parties to take more coercive measures.
The Court held that there has been a violation of article 8 of the Convention, on this ground as well as because the appeal of the mother against the provisional contact judgment had not been decided urgently and had not taken into account the impracticalities of the arrangement; the failure of the courts to temporarily regulate custody and contact rights after the summer of 2010; and the delay in referring the children for treatment and in imposing the child protection measure.
Even though, in this case, the domestic authorities’ endeavours had not always proved successful, these shortcomings seem to be less serious than those of previously convicted Member States. The dissenting opinion of Judges Karakaş, Lemmens and Ravarani also confirms that the domestic authorities “did not sit idle”. It could be argued that this case indicates the start of a more active stance by the Court in cases of parental alienation or estrangement. However, an important side note needs to be made. The judgment was delivered by four votes to three, making it fairly controversial and susceptible to a referral to the Grand Chamber.
However, a later judgment of the ECtHR (Aneva and others v. Bulgaria) confirmed this strict stance against parental alienation. The Court states that the clear absence of cooperation on the part of the parent does not absolve the authorities of their responsibility to do everything necessary to facilitate a reunion. Moreover, the Court recognises that the children’s reluctance to contact the other parent was brought about by the parent’s unlawful refusal to comply with the custody and contact judgments and by the ineffectiveness of the enforcement measures. The Court reiterates that it is not its role to substitute itself for the national authorities in the assessment of the measures that need to be taken in the circumstances, but deviates from its regular case law by stating that: “However, those measures (i.e. the imposition of fines and the presence of a bailiff) have not brought about the return of the children to the first and third applicants, nor have they led to the re-establishment of any kind of meaningful contact between them and the children with a view to rebuilding the relationships”. This statement, in the light of the measures taken by the State Party in this case, arguably deviates from the Court’s former finding that the positive obligation of the State to reunite parent and child is an obligation of means, not of result.
A State Party therefore will have to examine the child’s reasons for refusing contact very carefully before determining which measures are most feasible. It seems like the Court is starting to become aware of the adverse effects of parents using their children as weapons in custody battles. However, instead of evaluating the child’s best interests in these cases, the Court does prefer its previously adopted, procedural approach. Instead of focusing on what is in the best interests of the child, State Parties are still only required to take all measures that can be reasonably expected from them in order to reunite parent and child. However, these days, it seems that the requirement of what can be reasonably expected, is interpreted more strictly and leaves less discretion to the State Party.