November 14, 2023
Dr. Ronagh McQuigg
The European Court of Human Rights (ECtHR) has now built up a considerable body of case law on domestic abuse. It is now firmly established that failure on the part of State authorities to respond in a sufficient manner to this issue may constitute breaches of Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR). The recent case of Luca v The Republic of Moldova, the judgment which was issued on 17 October 2023, focuses in particular on the area of child contact in the context of domestic abuse and is a valuable addition to the jurisprudence of the ECtHR in this field.
Luca v The Republic of Moldova related to an alleged failure of the Moldovan authorities to protect the applicant from domestic abuse and to support her in maintaining contact with her children. According to the applicant, her husband (referred to in the judgment as ‘A.I.’) had, from around 2015, subjected her to incidents of physical and psychological abuse. In August 2016, a protection order was issued, stating that A.I. had to refrain from contact with the applicant and their two children. The applicant alleged to the police that A.I. had broken the terms of this order, however, no investigation was opened. When the applicant sought an extension of the protection order, the national courts rejected the application.
In July 2016, the applicant made a criminal complaint against A.I., alleging physical abuse. A.I. was given an administrative fine by the police, but no investigation was opened at that time. Investigations into two other allegations against A.I. by the applicant, including allegations of domestic abuse, were opened at a later stage, resulting in A.I. being convicted, given a suspended prison sentence and ordered to pay damages. In August 2016, the children moved in with A.I. and contact between the applicant and the children ceased. The applicant sought assistance, but the child-protection authority refused to issue a contact schedule. The applicant went to the courts and obtained a contact-schedule order, but A.I. allegedly refused to abide by it. The applicant and A.I. divorced in March 2022.
The applicant alleged that the authorities had failed to protect her from domestic abuse and to assist her in maintaining her relationship with her children when they had left to live with their father. The applicant also argued that the authorities’ inaction had been a result of her being a woman and of complacency in relation to domestic abuse.
The ECtHR found that the authorities had failed in their obligation ‘to carry out an immediate and proactive assessment of the risk of recurrent violence against the applicant and to take operational and preventive measures to mitigate that risk, to protect the applicant and to condemn the perpetrator’s conduct’ (para. 74). There had thus been a breach of Article 3 (the right to be free from torture or inhuman or degrading treatment or punishment).
The applicant submitted that following the abuse against her and the authorities’ failure to react promptly, the children had been taken away by their father and had subsequently been manipulated by him, resulting in their refusal to have any contact with the applicant. She argued that the child protection authority had not provided any support in time to prevent the children’s further estrangement and had not assessed the reasons for their hostility towards her despite the context of domestic abuse. The ECtHR found that the Moldovan authorities had afforded no consideration to the applicant’s accounts of having had normal relations with her children before they had moved in with their father or to the domestic abuse. The Court accepted that ‘on a practical basis, there may indeed come a stage where it becomes futile, if not counterproductive and harmful, to attempt to force a child to conform to a situation which, for whatever reasons, he or she resists’ (para. 94). However, although ‘coercive measures against children are not desirable and must be limited in this sensitive area’, nevertheless the applicant ‘was left to defend her right to maintain contact with her children by her own efforts, including by initiating court proceedings against the authorities that were meant to provide her with support’ (para. 94). There was no indication that ‘the authorities had any awareness of or sensitivity to the applicant’s vulnerability as a victim of domestic violence’ (para. 94). Given the failure of the Moldovan authorities to take into account the context of domestic abuse in the determination of child contact rights and to take prompt measures to support the applicant in maintaining contact with her children, the ECtHR found that there has been a breach of Article 8 (the right to respect for private and family life).
In addition, the applicant argued that the authorities had demonstrated a discriminatory attitude towards her when responding to her complaints of domestic abuse. She noted, in particular, the discriminatory language which had been used by judges when rejecting her requests for protection, and also the authorities’ general passivity in dealing with her case. The ECtHR was of the view that ‘the authorities’ actions were not simply an isolated failure or delay in dealing with violence against the applicant, but in fact condoned the violence, reflecting a discriminatory attitude towards the applicant as a woman’ (para. 106). There had therefore been a violation of Article 14 (the prohibition of discrimination) read in conjunction with Article 3.
Cases involving child contact against a background of domestic abuse can raise difficult and varying issues. Luca v The Republic of Moldova is not the first case in which the ECtHR has considered questions in this area. In I.M. and Others v Italy, the judgment which was issued in November 2022, the applicants, who were a mother and her two children, argued that they had been the victims of domestic abuse and that the State authorities had failed in their duty to protect and assist them during contact sessions with the children’s father, who was accused of ill-treatment and threatening behaviour during the sessions. The mother also complained of being deemed to be an ‘uncooperative parent’ and of having her parental responsibility suspended, the reason being that she had sought to protect her children by highlighting the risk to their safety. The ECtHR held that there had been a breach of Article 8 in respect of the children, as they had been forced to meet their father in conditions that did not provide a protective environment and therefore their best interests had been disregarded. There had also been a violation of Article 8 in respect of the children’s mother. The domestic courts had failed to examine her situation with care and had decided to suspend her parental responsibility without taking into consideration all of the relevant factors. No account had been taken of the situation of abuse experienced by the first applicant and her children, or of the criminal proceedings which were pending against the children’s father for ill-treatment.
Luca v The Republic of Moldova constitutes a valuable addition to the jurisprudence of the ECtHR in this area, in that it addresses a different situation in which issues relating to child contact in the context of domestic abuse can arise. I.M. and Others v Italy involved a mother and her children, who were alleged victims of domestic abuse, arguing that the state had failed to protect and assist them during contact sessions. By contrast, Luca v The Republic of Moldova involved an alleged victim of domestic abuse who argued that the authorities had failed to assist her in maintaining her relationship with her children. However, the judgments of the ECtHR in both cases demonstrated a meritorious recognition on the part of the Court of the need to take sufficient account of any domestic abuse context in considering issues relating to child contact.
The judgment in Luca v The Republic of Moldova is also reflective of broader patterns within the jurisprudence of the ECtHR in the area of domestic abuse. As is now usual in such cases, the Court found a violation of Article 3 in relation to the response of the State to the domestic abuse suffered by the applicant herself. In its early jurisprudence on domestic abuse, such as Bevacqua and S. v Bulgaria, Kalucza v Hungary and A v Croatia, the ECtHR tended to find breaches of Article 8 and then state that it was therefore unnecessary to examine the cases under Article 3 also. It is likely that the Court’s apparent preference for the use of Article 8 as opposed to Article 3 in its earlier jurisprudence on this issue, was due simply to the fact that it can be more straightforward to establish a violation of Article 8 than it is to establish a breach of Article 3. However, the difficulty with an approach based on practicality is that it can be mistaken for an approach founded on principle, and indeed such problems became apparent with the 2013 case of Valiuliene v Lithuania. In this case, the State argued that the ill-treatment to which the applicant, a victim of domestic abuse, had been subjected had not been sufficiently severe to fall within the scope of Article 3. The State nonetheless presented the ECtHR with a unilateral declaration acknowledging a violation of Article 8. The Court refused to accept this declaration, found a breach of Article 3 and stated that it was unnecessary to examine the complaint under Article 8 as a violation of Article 3 had already been found. If the ECtHR had accepted the State’s unilateral declaration of a violation of Article 8 it would in effect have been accepting that there had been no violation of Article 3 in this case, and it seems that such an outcome was not desired by the Court. Following Valiuliene, Article 3 has been used much more extensively in cases involving domestic abuse. Indeed, when addressing the responses of criminal justice systems to domestic abuse, the ECtHR almost always now bases its findings on either Article 3 or the right to life under Article 2, as well as frequently also finding a violation of Article 14. There are however broader circumstances relating to domestic abuse in which the Court has found breaches of Article 8 in recent times, an example of which is situations involving child contact, such as in Luca v The Republic of Moldova. The fact that a violation of Article 14 was also found in this case is reflective of the increased use of Article 14 by the ECtHR, both in cases involving domestic abuse and more broadly. In its 2009 judgment in the domestic abuse case of Opuz v Turkey, the Court first took the step of framing such abuse as a form of gender-based violence and found a violation of Article 14, a development which began an upsurge in the use of this provision in cases involving domestic abuse.
In conclusion, in Luca v The Republic of Moldova the ECtHR again demonstrated a praiseworthy recognition of the necessity of taking sufficient account of any context involving domestic abuse in considering issues relating to child contact. In so doing, the case builds upon the Court’s earlier decision in I.M. and Others v Italy, by addressing a different type of situation in which issues relating to child contact in the context of domestic abuse can arise. The judgment in Luca is also reflective of patterns within the case law of the ECtHR in the area of domestic abuse more broadly, in terms of the now frequent findings of breaches of Articles 3 and 14 in such cases.