Child rejects dealing with father out of loyalty to mother

ECHR: Child well-being and child willfulness in the right of access
Strasbourg (jur). A father living separately can not force a person to act against the will of his child. Finally, even if the child refuses contact with his father solely for reasons of loyalty to the mother, it is the welfare of the child and the will to help enforce the right of access, the European Court of Human Rights (7 February 2017) ECHR) in Strasbourg (Ref .: 28768/12). The ECtHR thus considered the measures taken by the Polish courts to be sufficient in a dispute over many years.

In this case, the Polish parents had separated shortly after the birth of their son on 2 December 2002 shortly thereafter. Although they exercised joint custody of the child, the mother repeatedly thwarted the handling of her son with the father.

(Image: Robert Kneschke / fotolia.com)

An agreement that he could see the child one day a week did not last long. The father finally sought legal help in 2006 and demanded more dealings with his son. A Polish court ruled in March 2007 that the man's rights of access had not been respected. At this time the mother and her son already lived in Germany for two months. The father did not know about it and had no contact with the child for a year.

When the Higher Regional Court of Celle finally ordered the return of the child to Poland, the controversial dispute continued there. The Polish courts initiated psychological consultations so that parents can come together to agree on the best interests of the child. Several rules of contact were met again and again, but then the mother underwent.

Finally, it was provided that any infringement of the right of access would be punished by a fine of 200 Polish zlotys (equivalent to 46.56 euros). The father had never enforced the threatened punishment with his ex-partner.

From the age of nine, the child was hostile to the father and declared that he no longer wanted to have contact with him.

The father then accused the Polish authorities and courts of not supporting him sufficiently in enforcing his right of access. His right to family life enshrined in the European Convention on Human Rights was violated.

However, the ECtHR held that the Polish authorities and courts had initiated all the necessary measures in the accession dispute, which took into account the interests of both parents and the child. Thus, the parents are not only asked for psychological counseling, and regulations on access rights had been taken. At times, these would have worked too. On the other hand, fines were foreseen for infringements. However, the father did not demand this for violations of access rights.

Crucial for the implementation of the right of access is ultimately the will of the child and the well-being of the child. Even though the child refused to deal with his father out of loyalty to his mother, the child's well-being and willingness to intervene were decisive.

The Polish authorities and courts subsequently took all necessary measures to enable the child to interact with the father. There is no violation of the right to family life, according to the ECtHR. fle