ECHR: Child welfare and child will be decisive in the right of access
Strasbourg (jur). A father who lives apart can in fact not force anything against the will of his child. Even if the child ultimately refuses contact with his father only out of loyalty to the mother, the child's well-being and will will be decisive for authorities and courts in enforcing the right of access, the European Court of Human Rights ruled on Tuesday, February 7, 2017 ( ECHR) in Strasbourg (Az .: 28768/12). The ECHR therefore considered the measures taken by the Polish courts to be sufficient in a long-standing legal dispute.
In this specific case, the Polish parents split up shortly after the birth of their son on December 2, 2002. They exercised joint custody of the child, but the mother repeatedly thwarted her son's dealings with the father.
An agreement that the child could see the child one day a week did not last long. The father finally sought legal help in 2006 and asked for more treatment of his son. A Polish court found in March 2007 that the man's access rights had not been respected. At that time, the mother and son had been living in Germany for two months. The father knew nothing of this and had no contact with the child for a year.
When the Celle Higher Regional Court finally ordered the child's return to Poland, the legal dispute continued. The Polish courts suggested psychological counseling so that the parents could agree on the best interests of the child. Several handling arrangements were made again and again, which the mother then undermined.
Finally, it was envisaged that any violation of the right of access would be punished with a fine of 200 Polish zlotys (equivalent to 46.56 euros). The father had never enforced the punishment on his ex-partner.
From the age of nine, the child was hostile to the father and declared that it no longer wanted to have contact with him.
The father subsequently accused the Polish authorities and courts of insufficient support in enforcing his right of access. His right to a family life, enshrined in the European Convention on Human Rights, had been violated.
However, the ECHR ruled that the Polish authorities and courts took all necessary measures in the legal dispute, which took into account the interests of both parents and the child. The parents were not only asked for psychological counseling, but also regulations on access rights had been made. At times these would also have worked. In the event of violations, fines were planned. The father did not request this in the event of violations of access rights.
Ultimately, the will of the child and the child's well-being are decisive for the implementation of the right of access. Even if the child refuses to deal with his father out of loyalty to the mother, the child's well-being and willingness are decisive in the rights of access.
The Polish authorities and courts then took all necessary measures to enable the child to deal with the father. There is no violation of the right to family life, according to the ECtHR. fle