European Court of Human Rights

 

 

 

FIRST SECTION

CASE OF GARAI v. HUNGARY

(Application no. 75950/14)

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

18 March 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Garai v. Hungary,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Péter Paczolay,
          Raffaele Sabato, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 75950/14) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian and British national, Mr Nicholas Thomas Garai (“the applicant”), on 3 December 2014;

the decision to give notice of the application to the Hungarian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 16 February 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the applicant’s complaints under Articles 6, 8 and 13 of the Convention, alleging a failure by the Hungarian authorities to enforce decisions on his contact rights in respect of his daughter C.

THE FACTS

2.  The applicant was born in 1968 and lives in London. He was represented by Mr Z. Dukkon, a lawyer practising in Budapest.

3.  The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  In 1994 the applicant married B.G. The couple had one daughter together, C., born on 7 February 1999. The applicant also adopted K., the mother’s daughter from a previous relationship. Until 2002 the family lived together in London. In 2002 the couple separated, and the mother moved back to Szob (Hungary) together with the two children.

6.  On 4 September 2006 the Vác District Court dissolved the couple’s marriage and approved their agreement on custody of the children and other parental rights. In accordance with the agreement, the daughters were placed in the custody of their mother and the applicant was granted contact rights every other weekend and through regular telephone calls. It was also stated in the agreement that C. would visit her father, who was at that time living in London, four times a year: first together with her mother and then, when she turned 12, by herself. Furthermore, the applicant was to be allowed to spend two weeks of the summer holidays and every other public holiday with the children. The applicant was entitled to take the children away with him during the visits, as long as he kept B.G. informed of their whereabouts.

7.  Regular visits took place in line with the agreement until December 2009, following which the applicant’s contact with the children was hindered.

8.  The applicant lodged a request to alter his contact rights in respect of C.; meanwhile, B.G. initiated proceedings to restrict the applicant’s contact with his daughter. She also lodged a criminal complaint against the applicant, maintaining that during a visit on 24 October 2010 he had behaved aggressively towards her, causing C. psychological trauma. The criminal complaint against the applicant was subsequently dismissed by the Dunakeszi District Prosecutor’s Office.

9.  In a decision of 12 November 2010, the Szob Guardianship Authority reduced the applicant’s contact with C. for a period of three months: his visits were to take place every other weekend from Friday 6 p.m. to Sunday 6 p.m. at the child’s place of residence. The Guardianship Authority referred to the incident on 24 October 2010 and found that implementation of the contact rights as set out in the parents’ previous agreement was not in the child’s best interests. This decision was amended on 3 December 2010 to the extent that the visits were instead to take place at the premises of the child-protection services. In the subsequent proceedings, the Guardianship Authority requested an expert psychologist’s opinion in respect of the parents and C. The psychologist recommended that the child should have unsupervised contact with her father one weekend every month.

10.  On 22 March 2011 the Szob child protection services organised a case conference with the participation of C.’s teachers and a psychologist. They recommended mediation between the parents but, if that proved unsuccessful, the child would have supervised contact with her father. On 11 April 2011 the Szob Guardianship Authority held a hearing at which the applicant refused to take part in mediation.

11.  In the meantime, B.G. requested that the Szob Guardianship Authority be excluded from the proceedings on grounds of bias. According to her, the applicant had tried to blackmail her other daughter K. and the director of the Guardianship Authority to testify in his favour. The director of the Guardianship Authority also withdrew from the proceedings, since she had lodged a criminal complaint against B.G. for repeated harassment. B.G. also alleged that the applicant had sexually abused K. She further maintained that the applicant had threatened to withhold payment of child allowance if she informed the police about the incident.

12.  On 3 May 2011 the Pest County Administrative Authority appointed the Vác Guardianship Authority to continue the proceedings. The Guardianship Authority’s attempt to stabilise the relationship between the parties and to reach an agreement on the exercise of contact rights was unsuccessful.

13.  By a decision of 30 June 2011, the Vác Guardianship Authority restricted the applicant’s contact rights in respect of C. to visits every sixth weekend. In addition, it granted the applicant visits on the second day of every other public holiday and daily visits for the second half of the school holidays. Both parents appealed. The Pest County Administrative Authority overturned the first-instance decision and remitted the case to the Vác Guardianship Authority.

14.  From July 2011 onwards, the applicant’s attempts to contact C. by telephone failed, apparently because in the mother’s view it was up to the child to decide whether she wanted to talk to her father.

15.  As a temporary measure, the applicant was granted the right to visit C. on 2, 3 and 4 September 2011. However, the visits did not take place because the mother did not let the applicant enter the house or go near C.

16.  B.G. changed the registered address for her and C. a few times, and as a result the ongoing proceedings concerning contact rights were transferred, first, to the Bátonyterenye Guardianship Authority. The proceedings initiated by the applicant with a view to enforcing his contact rights and amending the existing arrangements were nonetheless suspended on 22 November 2011 on account of the authorities’ inability to contact the mother and C. at their registered address. Subsequently, the case was transferred to the Nagymaros Guardianship Authority for lack of jurisdiction, since in the meantime B.G. had changed the child’s residence again. It appears that the authorities acknowledged the changes in the child’s residence, despite being aware of the need for the applicant’s consent. The applicant’s complaint in this regard to the Pest County Administrative Authority was rejected on the ground that the jurisdiction of the guardianship authorities was based on the child’s place of residence.

17.  According to the applicant, the mother and both children resided in Szob the whole time. He informed the relevant authorities on a few occasions that the change of address was purely formal and that in fact they had continued to live in Szob, without C. attending school. He submitted that the house at the new address the mother had communicated to the authorities was unoccupied. The applicant’s requests for onsite inspections were to no avail.

18.  On 7 May 2012 the applicant initiated proceedings before the Vác District Court, requesting that he be awarded custody of C. In the alternative, he sought to amend the contact arrangements. In the meantime, B.G. had withdrawn C. from school and moved to an unknown location, so it was not possible to contact her. The Vác Police Department initiated proceedings against her for endangering a minor.

19.  On 21 May 2012 the Nagymaros Guardianship Authority granted the applicant visits on 25 May, under the supervision of the authority, on 26 May, under the mother’s supervision, and on 27 May, without any supervision. It appears from the material in the case file that these visits took place in accordance with the authority’s decision. However, from June 2012 onwards the applicant was unable to see his daughter owing to the obstruction on the mother’s part.

20.  On 6 June 2012 B.G. lodged an application with the Nagymaros Mayor’s Office seeking to relocate abroad with C. In the absence of the applicant’s authorisation, the application was dismissed on 27 June 2012. On the same day the mother informed the Nagymaros Guardianship Authority that she had moved to London with C., with the intention of settling there, without the applicant’s authorisation. The applicant asked the Guardianship Authority to investigate whether the child was still living in Szob. From the summer of 2012 onwards, the mother did not acknowledge receipt of or respond to official letters.

21.  In the custody proceedings before the Vác District Court, the applicant asked the court to take steps to establish the child’s place of residence. According to the police report ordered by the court, the mother’s house in Szob had been empty for months. In his submissions before the court, the applicant expressed his doubt about this, stating that during his visit to Szob he had seen K. in the house.

22.  Since the applicant had had no contact with his daughter, he asked the Vác District Court to issue an interim decision on the exercise of his contact rights. By a decision of 11 September 2012, the applicant was granted contact every sixth weekend, one day during every other public holiday and the first half of the school holidays. The court saw no reason to maintain supervised contact, pointing out that during previous visits the applicant and his daughter had managed to establish a close relationship.

23.  The applicant was unable to see his daughter on the first scheduled visit on 5 October 2012, since nobody opened the door to him although, as the police confirmed, the mother and C. were at home in Szob. The applicant’s next attempt to see his daughter on 23 November 2012 was also unsuccessful. The applicant notified the Guardianship Authority of these facts.

24.  On 23 November 2012 B.G. requested the District Court to suspend the custody proceedings on the grounds that criminal proceedings were pending against the applicant in the United Kingdom for child abuse.

25.  On 22 January 2013 the Pest County Administrative Authority ordered the enforcement of the interim decision of 11 September 2012. However, the authorities did not know the whereabouts of C. or her mother.

26.  On 23 January 2013 the applicant was informed that the Crown Prosecution Service had reviewed his case and decided that no further action was to be taken in respect of a criminal complaint by B.G. in the United Kingdom alleging child abuse.

27.  On 19 June 2013 the Vác Police Department suspended the criminal investigation initiated against B.G. for endangering a minor and issued a European arrest warrant in respect of her.

28.  On 6 September 2013 the Vác District Court appointed a guardian ad litem, since B.G. had failed to appear at the court hearings or before the expert psychologist.

29.  On 26 September 2013 the Vác District Court issued an interim decision awarding custody of C. to the applicant. The decision could not be enforced, however, since the place of residence of mother and child was not known to the authorities. On 20 March 2014 the mother was arrested in Szob. C. was also found in the house there. On 21 March 2014 she was temporarily taken into care by a decision of the Vác Police Department.

30.  On 20 May 2014 the District Court appointed the applicant’s relative, Ms K.G., as the child’s guardian.

31.  In the ongoing custody proceedings before the Vác District Court, the mother failed to appear at the interview with the expert psychologist and the court invited the applicant to state whether he intended to pursue the matter. The applicant amended his application and asked the court to place the child with foster parents until her eighteenth birthday. He subsequently amended his application again, requesting that the child live with him instead.

32.  On 18 February 2016 the District Court upheld the applicant’s application, removed custody from the mother and directed that C. should live with him. The judgment became final on 11 April 2016.

33.  On 13 December 2016 the Vác District Court found B.G. guilty of endangering a minor and sentenced her to one year’s imprisonment, suspended for two years. The court established that since the summer of 2012 the mother had kept C. in complete isolation in her home in Szob. She had withdrawn the child from school and had secluded her from her peers. As a consequence, the child had suffered psychological harm and required psychotherapy.

RELEVANT LEGAL FRAMEWORK

34.  The relevant rules concerning the enforcement of contact orders were contained in Government Decree no. 149/1997 (IX. 10.) on guardianship authorities, child protection procedure and guardianship procedure, which at the material time provided as follows:

Section 33

“...

(2)  A child’s development is endangered when the person who is entitled or obliged to allow contact with the child repeatedly fails, through his or her own fault, to comply or to properly comply with the [contact rules], and thereby fails to ensure unhindered contact.

...

(4)  Where, in examining compliance with subsections (1) and (2), the guardianship authority establishes [culpability on the parent’s part], it shall, by a decision, order the enforcement of contact rights with the child within thirty days from receipt of the enforcement request. In the enforcement order it shall:

(a)  invite the non-complying party to meet, in accordance with the time and manner specified in the contact order, his or her obligations in respect of the requisite contact after receipt of the order and to refrain from turning the child against the other parent;

(b)  warn the non-complying party of the legal consequences of non-compliance, through his or her own fault, with the obligations under paragraph (a);

(c)  oblige the non-complying party to bear any justified costs incurred by the hindrance of contact.

(5)  Where the person entitled or obliged to allow contact fails to meet the obligations specified in the enforcement order under subsection (4), the guardianship authority may ...

(a)  initiate the involvement of the child contact centre of the relevant child welfare service or take the child into care if the exercise of contact entails conflict or is continuously hindered by obstacles, or the parents have communication problems;

(b)  initiate the child protection mediation procedure ...

...

(7)  If it is proved that the person liable to allow contact brings up the child by continuously turning him/her against the person entitled to contact and, despite the enforcement measures specified under subsections (4) and (5), fails to comply with the contact order, the guardianship authority

(a)  may bring an action seeking to place the child elsewhere if this is in the child’s best interests, and

(b)  shall file a criminal complaint

...”

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

35.  The applicant complained that his right to respect for his family life had been infringed as a result of the non-enforcement of his contact rights in respect of C., his minor daughter. He relied on Articles 6, 8 and 13 of the Convention. The Court takes the view that this complaint falls to be examined solely under Article 8, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.    Admissibility

36.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

37.  The applicant submitted that owing to the inaction of the domestic authorities, he had not been able to exercise his contact rights for four years. He maintained that the restriction of those rights had been based on erroneous facts, but that he had nevertheless cooperated with the domestic authorities with a view to establishing gradually contact with his daughter.

38.  The applicant further stressed that, although he had presented evidence that the changes to the child’s and mother’s address had been purely formal and had taken place without his consent, the domestic authorities had failed to verify the accuracy of the mother’s statements. As a result, the mother had been able to obstruct the ongoing proceedings. Furthermore, the best interests of the child, who had been withdrawn from school and isolated, had required the authorities’ intervention. As a result of the absence of any such measure on the part of the authorities, the child had suffered psychological trauma.

39.  The Government maintained that the domestic authorities had made reasonable efforts such as could be expected of them to facilitate contact between the child and the applicant without violating the requirement of proportionality. Among other steps, they had initiated a mediation process, in which the applicant had refused to take part. Furthermore, they had duly dealt with the applicant’s requests to amend the contact arrangements. The changes in the authority dealing with the applicant’s case could be explained by the fact that the child’s mother had kept changing her registered address. The Government submitted that the authorities had not known the whereabouts of the mother or the child from November 2012 onwards.

40.  The Government explained that the domestic authorities had reduced the frequency of the applicant’s visits and ordered supervised contact between the applicant and his child because he had behaved aggressively at a meeting on 24 October 2010 and because the previous arrangements had not been suitable for either the child or the parents. According to the expert psychologist’s opinion, the child’s feelings towards her father had been negative.

2.    The Court’s assessment

(a)    General principles

41.  It is well established in the Court’s case-law that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 202, 10 September 2019). Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see Glaser v. the United Kingdom, no. 32346/96, § 63, 19 September 2000).

42.  In relation to the State’s obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent’s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family. In the context of both its negative and its positive obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole; in both contexts, the State enjoys a certain margin of appreciation (see Khusnutdinov and X v. Russia, no. 76598/12, §§ 77-79, 18 December 2018, with further references).

43.  In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate execution that can reasonably be demanded in the special circumstances of each case (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 96, ECHR 2000‑I). The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her (ibid., § 102).

(b)    Application of the above principles to the present case

44.  The Court notes that it is common ground between the parties that the relationship between the applicant and his daughter comes within the sphere of “family life” under Article 8 of the Convention. That being so, it must be determined whether there has been a failure to respect the applicant’s family life.

45.  The Court accepts, firstly, that the principal obstacle to the applicant’s contact with C. in accordance with the agreement of 4 September 2006 (see paragraph 6 above) was the mother’s resistance. As a result of the breakdown in cooperation between the parents, the original contact arrangement was quickly revised by the relevant guardianship authority and the applicant was granted restricted contact rights in respect of C. (see paragraph 9 above). The Court has no reason to doubt that this restriction was imposed for what was, at that time, a valid reason and that the guardianship authority put the child’s best interests first, as required by Article 8 of the Convention.

46.  Nonetheless, the Court considers that the facts of the case indicated very early on that amending the contact arrangements would be inadequate to overcome the mother’s lack of cooperation and to improve the situation, as B.G. refused to comply with the new measures as well.

47.  It is also true that the actions taken by the authorities to reconcile the parents were unsuccessful. This notwithstanding, a lack of cooperation between separated parents is not a factor which can by itself exempt the authorities from their positive obligations under Article 8. Rather, it imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see Strand Lobben and Others, cited above, § 206, and Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011, and the case-law cited therein).

48.  The Court takes the view that those considerations also apply to the present case. It further notes that the domestic authorities had a range of measures at their disposal for the enforcement of their decisions, including the possibility of issuing a warning, imposing a fine, initiating child-protection proceedings, amending contact rights, filing a criminal complaint against the non-complying parent or bringing an action to place the child elsewhere, and the power to enforce contact orders (see paragraph 34 above). The Court finds no fundamental defect in this system to enforce and enable the exercise of the applicant’s contact rights. However, the guardianship authority did not avail itself of these legal avenues and no genuine attempt was made to facilitate the applicant’s contact with his daughter. This inaction thus resulted in the weakening of the bond between the applicant and C., potentially influencing the outcome of the case. It also led to the authorities further restricting the applicant’s contact rights (see paragraph 13 above).

49.  It is also significant in this connection that, when faced with the fact that B.G. had repeatedly changed the child’s registered address, it must have been clear to the authorities that the result of such conduct was the obstruction of the ongoing administrative proceedings and further deterioration of the relationship between the applicant and his daughter. Nonetheless, despite the manifestly unlawful conduct on the part of B.G., the authorities remained passive in the face of the situation and neither took adequate and effective measures for the enforcement of the applicant’s contact rights nor followed up on his repeated requests to locate the child (see paragraph 16 above). The Court stresses that because of the domestic authorities’ failure to locate C. and her mother and to communicate their location to the applicant, not only was he prevented from exercising his contact rights in accordance with the administrative decisions but, for a lengthy period of time, he was also prevented from seeing his daughter even occasionally. It was thus impossible to enforce the further interim decisions taken in the judicial proceedings granting the applicant occasional visiting rights and, later, custody. In this respect the Court finds it relevant that in March 2014 the child was found in Szob, at her habitual place of residence, thus showing that she could easily have been located by the domestic authorities had they been diligent in enforcing the relevant court decisions or in following up on the applicant’s requests for an onsite inspection.

50.  In the Court’s view, this inaction of the authorities cannot be explained by any concern for the best interests of the child. C. had been withdrawn from school and the authorities had no contact with the family at all. This, as demonstrated by the facts of the case, resulted in the child’s isolation, necessitating psychological support (see paragraph 33 above).

51.  The foregoing considerations are sufficient to enable the Court to conclude that the measures taken by the Hungarian authorities in order to enforce the decisions on the applicant’s contact rights in respect of his daughter C. were not “adequate and effective”. There has accordingly been a violation of Article 8 of the Convention.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

53.  The applicant claimed 100,000 pounds sterling (GBP), plus any tax that may be chargeable, in respect of non-pecuniary damage.

54.  The Government contested this claim.

55.   The Court finds that the applicant must have sustained some non‑‑pecuniary damage which is not sufficiently compensated for by the finding of a violation of the Convention. Making its assessment on an equitable basis, it awards him the sum of 8,000 euros (EUR).

B.     Costs and expenses

56.  The applicant claimed GBP 30,000 plus value-added tax for the legal fees incurred before the Court. He submitted that he would only be billed if the case was decided in his favour. He provided a copy of the agreement with his lawyer.

57.  The Government contested this claim.

58.  The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria (no. 2), no. 40896/98, § 79, 30 September 2004). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). Having regard to the above considerations and the information in its possession, the Court considers it reasonable to award the applicant EUR 4,000 for the costs and expenses incurred before the Court plus any tax that may be chargeable to him.

59.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

         Attila Teplán                                                                Alena Poláčková
Acting Deputy Registrar                                                            President