From Unlawful Act to Legal Status Quo: How Time Validates Injustice in Novák v. The Czech Republic

By Ina Siggemann

The recent judgment in Novák v. the Czech Republic  (9 April 2026) exposes a frustrating reality: how domestic courts permit the weaponisation of time to validate unlawful action under the guise of the child’s ‘best interest’. The case concerns a father’s gruelling battle against both parental alienation from his children and judicial inertia, causing the Court to scrutinise the systematic failure of national authorities under Article 8 ECHR.

Following an outline of the factual background and the Court’s reasoning, this blog post analyses the deeper implications of the ruling. The discussion focuses not only on the time factor, which plays a particularly significant role in custody decisions, but also on a possible “invisible gender bias” regarding maternal care influencing the stance of the domestic courts.

Facts

The applicant, a Czech national living in Brno, shared custody of his two daughters (born in 2014 and 2018) after separating from their mother in April 2021. A few months later, in September 2021, the mother filed for divorce and, at the same time, sought sole custody of the children. Consequently, the applicant filed a petition for shared custody. By January 2022, the mother had unilaterally terminated the shared custody arrangement, although a court ruling had not yet been issued. Despite the applicant’s immediate efforts to secure interim measures for joint custody and maintain weekly contact with his daughters, the Brno Regional Court dismissed his requests in June 2022 and thus overturned the Brno Municipal Court’s previous decision, which had granted his application in May 2022.  The Regional Court argued that there was no need for an interim custody measure because the children were being properly cared for by their mother and the applicant had regular contact with them.

Supported by this judicial passivity, the mother escalated her unilateral actions. In August 2022, without the applicant’s knowledge or consent, she relocated the daughters to Prague – 200 km away – and enrolled them in a new school. She offered the applicant to see his children every other weekend and during the holidays, while keeping contact with his daughters over the phone and online. Only after having moved did she seek a court order to retroactively authorize the relocation.

For the next two years, a frustrating pattern emerged: the applicant repeatedly sought interim measures to re-establish custody. Yet, domestic courts consistently rejected his applications. They reasoned that while the mother’s unilateral move was technically ‘unlawful’, she provided good care, and the applicant continued to have contact with his children (paras 14–15). The children were not exposed to a level of danger sufficiently serious as to necessitate such intervention (paras 15—16). Furthermore, it was not in the best interest of the children to expose them to a further change (para 17). The mother even levelled an unsubstantiated criminal complaint against the applicant in 2023, accusing him of having behaved inappropriately towards one of his daughters, to further stall proceedings. Consequently, in April 2023, sole custody was granted to the mother while awarding contact rights every other weekend and during the holidays to the applicant.

While acknowledging that both parents were equally capable caregivers, the Brno Regional Court justified its decision by pointing to the newly established status quo: the children had adapted well to Prague, and the 200 km distance now made joint custody ‘impractical’ (para 23). In essence, the court argued that reversing the relocation would disrupt the children’s stability—thereby transforming the mother’s unlawful unilateral action into the primary legal justification for depriving the father of custody.

In October 2023, the Czech Constitutional Court dismissed the applicant’s constitutional appeal against the Regional Court’s judgment. The Constitutional Court held that the Regional Court had taken all relevant elements into account and found its explanation regarding the unsuitability of a shared custody arrangement convincing. In addition, it stated that it remained the responsibility of the parents to foster a non-stressful environment for their children and to have a healthy relationship with them (para 24).

Since March 2023, the mother systematically sabotaged the father’s remaining contact rights, resulting in over twenty court-issued fines for missed visits and handovers (para 27, 30). The courts consistently rejected all attempts by the applicant to secure broader contact with his children. Since the circumstances had not altered since the initial custody ruling, any modification would run contrary to the children’s best interest. In February 2025, the mother was finally convicted of obstructing the enforcement of the decision on the applicant’s contact rights (para 31).

Judgment

The Court clearly found an interference with the applicant’s right to respect for his family life under Article 8 of the Convention, reaffirming that the mutual enjoyment of a parent and child’s company constitutes a core element of family life (para 63). Bypassing the doctrinal debate on whether the case fell under a negative or positive obligation, the Court centred its inquiry on a single, crucial question: did the domestic authorities strike a ‘fair balance’ between the competing interests by providing relevant and sufficient reasoning and taking all reasonable measures to counter the mother’s obstructive behaviour? (paras 65—66)

While acknowledging that domestic authorities generally enjoy a wide margin of appreciation in custody matters due to their proximity to the case, the Court pointed out that strict scrutiny applies when family relations risk being effectively curtailed (para 68).

In evaluating the facts, the Court found that the children’s mother had acted in breach of domestic law by unilaterally relocating the children and seeking judicial authorization only ex post facto (para 69). In such a scenario, Czech authorities were expected to use all reasonable means to avoid disrupting the bond between the applicant and his daughters – including, where appropriate, restoring the status quo that had existed before the children’s unlawful relocation (para 71). Instead, domestic courts failed to address the substantial change of circumstances forced upon the applicant by the unlawful move (para 72). The Court severely criticised the domestic courts’ passivity and their complete disregard for the critical factor of time in proceedings of this kind (para 74).

Strikingly, the judgment emphasises that future parent-child relationships must be determined by a holistic assessment of all relevant factors, not simply by the mere effluxion of time (para 73). Because parental responsibility proceedings demand urgent handling, applications for interim custody measures must be prioritized to prevent irreparable consequences (para 73). By failing to act, the national courts fostered a sense of impunity, signalling to the mother that her non-compliance carried no consequences (para 74). Ultimately, the Court concluded that while the Regional Court’s grounds for granting sole custody might have been relevant, they were profoundly insufficient (para 76). The domestic courts merely observed the new reality created by the relocation but failed to examine the unlawful nature of the mother’s actions or the father’s tireless, unsuccessful attempts to prevent the alienation (para 76). Consequently, the Court found a violation of Article 8 ECHR.

Commentary

1. Continuation of previously established case law doctrine

In Novák, the Court delivers a cohesive synthesis of its family law jurisprudence, establishing a rigorous framework for national courts facing custody decisions in general and specifically in the case of unilateral intra-State relocation. This has already been identified as well in the commentary on ECHRCaseLaw. Rather than breaking entirely new legal ground, the judgment intertwines two distinct strands of the Court’s case law: the procedural scrutiny required in international child abduction and the significance of the passage of time.

First, Novák ties directly into the procedural lineage developed in the context of international child abduction in cases such as Neulinger and Shuruk v. Switzerland (2010) as well as X v. Latvia (2013). Although those cases factually dealt with cross-border abductions under the Hague Convention, they firmly established the structural baseline. Domestic courts must not remain passive in cases involving the unilateral removal of a child but must carry out an ‘in-depth examination of the entire family situation’ (Neulinger, para 139) or an ‘effective examination of any allegations made in connection with a refusal to return’ (X v. Latvia, para 118). In both cases, the Court established an obligation for the domestic courts to sufficiently analyse the circumstances before ordering the return of the child. In Novák, the Court transposes this standard of procedural scrutiny to internal custody disputes, making it clear that domestic courts cannot use a superficially invoked ‘best interests’ standard to rubber-stamp a unilateral relocation. On the contrary, the Court finds here that the reasons put forward by the domestic courts are insufficient if they do not take into account the reasons for the unilateral removal of the children and the applicant’s attempts to maintain contact (para 76).

Second, the judgment reinforces the Court’s established doctrine on the destructive mechanics of time in custody proceedings. As established in Strand Lobben and Others v. Norway (2019) (read analysis here and here), the mere passage of time can cause irremediable harm to parent-child relationships, transforming procedural delay into a tool of permanent alienation. Effective respect for family life requires that future relations between parents and children be determined only by considering all relevant circumstances. According to the Court, taking the mere passing of time into account is not enough. Because the passage of time is never neutral, effective respect for family life under Article 8 requires that interim measures be treated with a high degree of priority (Bevacqua and S. v. Bulgaria, 2008).

The value of Novák lies precisely in this doctrinal convergence. The Court makes it clear that states must intervene proactively. Therefore, institutional passivity towards people taking the law into their own hands is, in itself, a violation of Article 8. Consequently, Novák serves as a powerful landmark precedent, consolidating different procedural duties into a decisive conclusion: national courts must actively prevent time from validating injustice.

2. The weaponisation of time and the ‘best interests’ paradox

The ruling in Novák highlights a chronic dilemma in family law: since the time factor carries immense weight, particularly in decisions affecting minors, adjudication is essential. A few months can fundamentally alter a child’s social and psychological reality, unlike that of an adult. While the Czech courts did apply the overriding principle of the best interests of the child, they did so too late.

The stance of the Czech Constitutional Court is particularly surprising in this regard. In a consistent series of rulings between 2017 and 2024, it repeatedly held that children must be returned to their original place of residence following a unilateral relocation. For instance, in decision no. I. ÚS 955/15 of 14 March 2017, the court ruled that one parent cannot significantly alter a child’s residence against the will of the other parent, emphasizing that a parent should not benefit from such unlawful conduct in subsequent custody arrangements (para 41). Similarly, in judgment no. I. ÚS 2570/21 of 11 January 2022, the court issued an interim measure requiring the immediate return of a child, reasoning that procedural delays would otherwise cause permanent alienation from the father, which would not be in the child’s best interests (para 46). In its ruling of 28 February 2024, no. I. ÚS 3399/23, the Constitutional Court even introduced the novel term ‘domestic abduction’ to describe such unilateral moves inside the same country (para 47). Nevertheless, the Constitutional Court failed to apply its own established case law in Novák. Instead, it confirmed the Regional Court’s decision, merely stating that the Regional Court had taken all relevant elements into account (para 24). By doing so, the Constitutional Court disregarded the critical factor of time in this specific case, invoking the best interest of the child too late and validating an unlawfully manufactured status quo.

It is precisely at this deadlock that the judgment of Novák draws a clear line, signaling that the protection of family life requires quick institutional action.

3. The invisible bias: Unconscious stereotypes beneath the procedural surface?

While the procedural framework of Novák focuses heavily on the passage of time, a critical look beneath the surface reveals at least a possible underlying, gender-biased pathology that remains largely unaddressed. Under the guise of the best interest of the child, the Czech domestic courts concluded that the mother’s unilateral relocation did not lead to an urgent need to adjust the children’s situation, simply because the mother was taking good care of them (para 15).

This reasoning exposes a profound asymmetry in the domestic court’s perception. The case demonstrates a clear picture: a father who proactively and relentlessly sought to maintain contact from the very beginning, contrasted with a mother who systematically sabotaged access rights and engaged in unlawful behaviour to advance her own interests. Yet, despite this severe obstruction, the mother’s fitness as the primary caregiver was never fundamentally questioned. This reflects a possible implicit assumption held by the domestic courts: that mothers are naturally suited to hold primary custody and to take good care of their children, regardless of their compliance with the law and their actual behaviour. This is specifically striking in this case, in which the mother falsely accused the applicant of engaging in inappropriate behaviour towards one of the daughters (para 20). After noting that the mother’s allegations had not been substantiated, the District Court imposed several fines on the mother, including, among other things, the false allegations (para 27). Nevertheless, this did not lead to a different decision regarding custody. By rendering a strict judgment, the Court draws a clear line against the domestic court’s passivity. However, the Court’s heavy reliance on a purely procedural, time-centric analysis leaves this structural gender bias in the dark. The Court strictly penalises the domestic judiciary for failing to actively counter the passage of time, yet it completely avoids deconstructing why the authorities tolerated the mother’s obstruction for so long. In family law disputes, parent-child dynamics may be influenced by unconscious stereotypes regarding a mother’s natural suitability for caregiving. While the Court’s defence of the status quo under Article 8 is highly noteworthy, it is unfortunate that the Court did not seize this opportunity to address the gendered dimensions of the domestic court’s assessment.

Conclusion

This case highlights the fundamental tension in custody cases in family law: while the best interest of the child often demands stability after a move, this objective must be weighed against a parent’s right to be protected from unilateral alienation. In this regard, Novák sets an important and very clear precedent. The Court firmly establishes that a unilateral and unlawful relocation violates Article 8 if the resulting status quo is subsequently used by domestic courts to reward the parent who acted unlawfully. The Court reaches this result by building on established case law, specifically, by extending principles from the context of international child abduction to cases of domestic relocation.