Kosmopoulou v Greece
| Judge | JUDGES LORENZEN (PRESIDENT),ROZAKIS,BONELLO,TULKENS,VAJIC,STEINER AND HAJIYEV,MR S NIELSEN (DEPUTY SECTION REGISTRAR) |
| Judgment Date | 05 February 2004 |
Human rights – Private and family life – Contact – Mother’s visiting rights to daughter being suspended – Whether mother’s right to respect for family life violated – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The mother married in 1987 and gave birth to a daughter in 1988. In 1996, the mother left the matrimonial home and went to England. She left the daughter with the husband, who was awarded custody. Initially, the mother was given an interim access order. However, the husband failed to comply with the order and successfully applied to have it set aside. Psychologists concluded that keeping the child at a distance from her mother temporarily would contribute to suppressing the child’s negative feelings. At further proceedings, the court decided that the child should stay with her mother once a week and for some days during the school holidays. The husband asked the court to review this decision. Meanwhile, the child had refused to stay with the mother when brought to her house. On one occasion when the child refused to stay, they were taken to a police station, where the mother kicked the child and tore out clumps of her hair. The judge, at the husband’s request, suspended the mother’s visiting rights, without hearing prior representations from the mother. Her appeals were dismissed. The mother later obtained a judgment which stated that it was essential for the child to have contact with her mother and that the father was under a duty to facilitate such contact. The court found that the child’s reluctance to see her mother was due to the behaviour of the husband, who had involved the child in his own disputes and problems with the mother. The mother subsequently issued a summons against the husband requiring him to comply with the judgment, but this was unproductive. The public prosecutor was asked to intervene. A psychiatric report was prepared, but the prosecutor decided not to take any action. The authorities refused to give the mother a copy on the ground that it was confidential. She only obtained a copy three and a half years later. The mother applied to the European Court of Human Rights contending that the authorities had violated her rights under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 by failing to protect her family life with her child. The government argued that the child’s persistent refusal to see her mother was the only reason the access arrangements had not been complied with and that it would be going beyond the state’s positive obligations under art 8 to take coercive measures to force the child to meet her mother.
Held – Although art 8 included (i) a right for parents to have measures taken with a view to their being reunited with the children, and (ii) an obligation for the national authorities to take such measures, the latter obligation was not absolute. It was not absolute as the reunion of a parent with children who had lived for some time with the other parent might not be able to take place immediately and might require preparatory measures to be taken. The nature and extent of such preparation would depend on the circumstances of each case, but the understanding and co-operation of all concerned was always an important ingredient. Whilst national authorities had to do their utmost to facilitate such co-operation, and obligation to apply coercion in this area had to be limited since the interests as well as the rights and freedoms of all concerned had to be taken into account, particularly the best interests of the child and his or her rights under art 8. Where contact with the parent might appear to threaten those interests or interfere with those rights, it was for the national authorities to strike a fair balance between them. In the instant case, the authorities had not taken all steps to enable the mother to maintain and develop family life with her daughter after she had separated from her husband. Although she had obtained visiting rights, she was unable to see her daughter or establish regular contact with her. It was striking that no further action was taken by the competent authorities, despite the fact that the psychiatrist who had examined the child expressly stated in her report that the child was suffering from psychological problems and recommended regular contact with the mother. Furthermore, the courts had made orders provisionally suspending the applicant’s visiting rights without hearing representations from her. She had also not had the psychiatric report released to her until three and a half years after the suspension. That was contrary to the principle that it was of paramount importance for parents to be placed in a position enabling them to have access to all relevant information which was at the disposal of the domestic courts. It followed that in the instant case, the applicant was not involved in the decision-making process to a degree sufficient to provide her with the requisite protection of her interests. Accordingly, there had been a violation of art 8.
Cases referred to in judgmentAhmut v Netherlands (1997) 24 EHRR 62, [1996] ECHR 21702/93, ECt HR.
Bronda v Italy [1998] ECHR 22430/93, [1998] EHRLR 756, ECt HR.
Elsholz v Germany[2000] 3 FCR 385, ECt HR.
Glaser v UK[2000] 3 FCR 193, [2001] 1 FLR 153, ECt HR.
Gul v Switzerland (1996) 22 EHRR 93, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Hoppe v Germany[2003] 1 FCR 176, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, [1996] EHRC 17383/90, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Sahin v Germany[2003] 2 FCR 619, ECt HR.
X, Y and Z v UK[1997] 3 FCR 341, [1997] 2 FLR 892, ECt HR.
ApplicationThe applicant, Eleni Kosmopoulou, alleged a violation by Greek authorities of her right to respect for family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment of the court.
PROCEDURE1. The case originated in an application (no 60457/00) against the Hellenic Republic lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) by a Greek national, Mrs Eleni Kosmopoulou (the applicant), on 16 August 2000.
2. The applicant was represented by Mr S Tsakyrakis, a lawyer practicing in Athens. The Greek government (the government) were represented by the delegates of their agent, Mr M Apessos, senior adviser at the State Legal Council, and Ms S Trekli, legal assistant at the State Legal Council.
3. The applicant complained, in particular, of a violation of her right to family life guaranteed under art 8 of the Convention.
4. The application was allocated to the second section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
5. On 1 November 2001 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed first section (r 52(1)).
6. By a decision of 10 October 2002, the court declared the application partly admissible.
7. The applicant and the government each filed observations on the merits (r 59(1)).
THE FACTS8. The applicant was born in 1965 and lives in Athens.
9. On 25 April 1987 she got married and on 23 January 1988 gave birth to a daughter.
10. On 19 November 1996 the applicant left the matrimonial home and went to England, leaving her daughter with her husband.
A. Proceedings for custody of the applicant’s daughter
11. On 6 February 1997 the applicant’s husband lodged an interlocutory application with the Athens Court of First Instance for an interim-custody...
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