FOURTH SECTION

DECISION

Application no. 44078/14 Tibor TÖRÖK against Hungary

The European Court of Human Rights (Fourth Section), sitting on 30 June 2020 as a Committee composed of:

Branko Lubarda, President, Carlo Ranzoni, Péter Paczolay, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 2 August 2014,

Having regard to the observations submitted by the Hungarian Government (“the Government”) and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Tibor Török, is a Hungarian national who was born in 1979 and lives in Nyíregyháza. He was represented before the Court by Mr D.A. Karsai, a lawyer practising in Budapest.

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

The circumstances of the case

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

4 . In 2008 the applicant married A.P. The couple lived together until 22 July 2009, when the marriage broke down; the applicant subsequently filed for divorce. Only later did it transpire, during the divorce proceedings, that his wife was pregnant by that stage.

5 . On 29 March 2010, while the divorce proceedings were still ongoing, the applicant ’ s wife gave birth to a girl. Although at the time the identity of the biological father was uncertain, the applicant was registered as the father based on the statutory presumption of paternity under section 35 of Act no. IV of 1952 on Marriage, Family and Guardianship.

6 . On 26 April 2010 the divorce proceedings were concluded and the settlement between the parties was approved by the Nyíregyháza District Court. The parties agreed upon, inter alia , the rights to contact between the applicant and the newborn child to the effect that the applicant was entitled to visit the child every Saturday between noon and 3 p.m. at the mother ’ s place of residence at the time.

7 . On 28 April 2010 the applicant brought a claim to rebut the presumption of paternity. On 16 February 2011 a DNA test confirmed that the applicant was the biological father of the child; consequently he withdrew the action. During the litigation concerning paternity, which lasted almost one year, the applicant did not exercise his contact rights.

8 . On Saturday 19 February 2011 the applicant, accompanied by his father, went to the apartment of the mother, who was living at the time with her parents, in order to exercise his contact rights for the first time. The mother ’ s parents refused entry to the applicant ’ s father. A heated argument broke out and the police were called to intervene. On that occasion, the applicant was able to see the child; however, he was not allowed to hold her in his hands.

9 . During the next visit, on 26 February 2011, the applicant appeared at the mother ’ s residence; however, since once again his father was refused entry and the applicant did not want to enter the home alone, he left without even attempting to step into the apartment.

10 . It does not appear that the applicant ever tried again to exercise his contact rights after this incident.

11 . At some point thereafter, criminal proceedings were initiated against the mother on charges of breach of the peace. She was suspected of clawing at the arm of the applicant ’ s mother and ripping off her bracelet in an argument that took place in public on 29 July 2011. Eventually, she was found guilty of a minor offence against property. The child was present when the scene occurred.

12 . The visits by the paternal grandparents – in the absence of a legally binding judicial decision – were regulated by the Child Custody Authority and had taken place in the Child Care Centre. Following the incident of 29 July 2011, the paternal grandparents discontinued making the visits.

13 . Meanwhile, on 22 February 2011 the applicant requested the support of the Child Custody Authority to enforce his contact rights and to review the designated venue of the visits as indicated in the settlement. On 31 March 2011 the Child Custody Authority obliged the mother to ensure the applicant ’ s contact rights as laid down in the settlement, namely without the presence of her parents or anyone else. The Authority had no competence to amend the settlement; it therefore rejected the applicant ’ s request in that regard. Following the mother ’ s appeal, the second-instance authority upheld the decision.

14 . On 5 July 2011 the mother requested the Child Custody Authority to oblige the applicant to visit the child, as he had failed to do so on 4, 11, 18 and 25 June and on 2 July 2011. During the proceedings the applicant did not deny that he had not appeared on the visiting days. He defended himself by arguing that his physical integrity had been threatened at the mother ’ s residence and that he had been menaced by the mother ’ s family.

15 . On 29 August 2011 the Child Custody Authority established that responsibility for the missed visits lay with the applicant and obliged him to exercise his contact rights in line with the settlement approved by the court.

16 . On 21 November 2011 the second-instance authority reversed the decision and dismissed the mother ’ s request, finding that the lack of visits was not attributable to the applicant, since he had a well-founded fear that the visits could result in further conflict. In arriving at this conclusion, the second-instance authority took into consideration the fact that relations between all parties concerned (the applicant, the mother and their respective parents) were uneasy and conflict-laden, even violent on one occasion which had resulted in criminal proceedings. The whole purpose of contact could not be achieved in these conditions. The second-instance authority also emphasised that these conflicts – if they took place in the presence of the child – were harmful to her and evidently not in her best interests.

Ultimately, the Nyíregyháza Administrative and Labour Court shared the second-instance authority ’ s point of view and upheld its decision.

17 . In the meantime, since the applicant was still not visiting his child, the mother reiterated her request a number of times in relation to all the occasions he had missed. In line with the position of the second-instance authority, the Child Custody Authority rejected these requests.

18 . On 16 March 2011 the applicant instituted civil proceedings before the Nyíregyháza District Court for amending the contact arrangements. At the same time the applicant also lodged a request for an interim measure with the same content.

19 . On 1 June 2011, at the first hearing, the District Court dismissed the applicant ’ s request for an interim measure, finding that it did not meet the statutory requirements laid down in section 156 of Act no. III of 1952 on the Code of Civil Procedure. In this context the court emphasised that although the Child Custody Authority had granted the applicant ’ s request for enforcement, he had not even attempted to exercise his right. The Nyíregyháza High Court, acting as a second-instance court, upheld the decision.

20 . On 4 April 2012 the District Court found for the applicant and designated the premises of the Child Custody Authority as the venue for the visits. The District Court held that on account of the hostile relationship between the parties and their respective families, the mother ’ s place of residence was no longer a suitable venue for the weekly visits. Furthermore, taking into account that there had been absolutely no contact between the applicant and his child, the District Court decided to apply a gradual approach and designated a neutral venue for the visits, where the Child Custody Authority could provide professional support.

21 . On 9 April 2013 the Nyíregyháza High Court, acting as a second-instance court, reversed the District Court ’ s decision and rejected the applicant ’ s action. The High Court attached particular significance to the fact that the mother had, in the meantime, moved out of her parents ’ home. Consequently, the conditions that the applicant complained of no longer existed. It also held that it would not serve the child ’ s emotional development if she were to be removed, even briefly, from an environment with which she was familiar.

22 . On 25 March 2014 the Kúria quashed the decision of the High Court and upheld the first-instance decision. It found that the settlement regarding contact had never worked out well, for which the applicant was principally liable: during the proceedings for rebutting the presumption of his paternity, although granted visiting rights, he had not even attempted to visit the child. Later on, the subsequent events, which by that time were undoubtedly imputable to both parties, had led to a situation where an amendment of the contact arrangements was inevitable. Since by that time three years had already elapsed without any contact between the child and the applicant, the Kúria found that the relationship would have to be built up anew. Sharing the gradual approach adopted at first instance, the Kúria also found that the visits were to take place in a neutral environment where professionals could support the applicant and the child. As regards the Nyíregyháza High Court ’ s reasoning, the Kúria emphasised that the mere fact that the mother had moved out of the parents ’ home did not mean that all obstacles had been removed, since the main problem was the hostile relationship between the child ’ s parents and their respective families. The Kúria also highlighted that it could not harm a three-year old child ’ s emotional development if she had to attend the visits at a different location, in particular one which she had known owing to the visits of the paternal grandparents. Ultimately, the Kúria held that the rearrangement was in the child ’ s best interests.

23 . Meanwhile, on 14 March 2014 the Child Custody Authority established that responsibility for the missed visits of 19 and 26 October and 2 and 9 November 2013 lay with the applicant. It also obliged him to exercise his contact rights in line with the settlement approved by the Nyíregyháza District Court in 2010.

24 . On 22 May 2014 the second-instance authority and on 25 September 2014 the Nyíregyháza Administrative and Labour Court upheld the decision. The court noted that at the time of the Child Custody Authority ’ s decision, the Kúria had not yet delivered its decision and the parties had still been obliged to comply with the settlement of 2010.

RELEVANT LEGAL FRAMEWORK

25 . Act no. IV of 1952 on Marriage, Family and Guardianship, as in force at the material time, provided in its relevant parts as follows.

Section 18

“(3) Any change in the settlement between the parties within two years of the date of approval of the arrangement, even if there are other legal conditions, may be requested only if it is in the best interests of the minor child or if his or her interests are at serious risk of being harmed.”

Section 92

“(1) A child has the right to maintain personal and direct contact with a parent living apart. The parent living apart has the right, and is obliged, to maintain contact with his or her child and to regularly visit the child (contact rights). The parent or other person in whose care the child is placed is obliged to ensure undisturbed contact.

...

(5) If a court has decided upon how contact rights are to be exercised, any request to amend that decision within two years of its becoming final may be made only to the court.”

26 . Act no. III of 1952 on the Code of Civil Procedure, as in force at the material time, provided in its relevant parts as follows:

Interim measure – Section 156

“(1) The court may, upon request, order an interim measure allowing the claims made in the court action (counter-action) where this is necessary to avert imminent damage or for the unaltered preservation of the situation giving rise to the legal dispute, or for the protection of the rights of the person seeking the interim measure and deserving special treatment, provided that the disadvantage caused by the measure does not exceed the advantages that may be gained by the measure. ... The facts underlying the request must be substantiated.

...

(3) The court shall examine the request for an interim measure as a matter of priority.

(4) Before taking a decision, the court shall hear the parties in person or shall allow them, upon request, to submit written statements. The hearing of the parties may only be dispensed with in extremely urgent cases and where the party has failed to appear before the expiry of the deadline or time-limit set.

(5) In deciding on a request for an interim measure, evidence shall only be taken where the request cannot be determined without it.

(6) The court shall determine the request for an interim measure in an order, against which a separate appeal can be lodged ...”

COMPLAINT

27 . The applicant complained that the Hungarian authorities had failed to take effective steps to enforce his contact with his daughter. He relied on Article 5 of Protocol No. 7 to the Convention.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28 . The applicant complained about the Hungarian authorities ’ inaction to secure the exercise of his contact rights. He relied on Article 5 of Protocol No. 7 to the Convention.

29 . The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the application raises an issue under Article 8 of the Convention alone, which provides 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.”

30 . The Government contended that the domestic authorities had implemented all the necessary measures to enforce the applicant ’ s access to his child or at least what had reasonably been expected of them without a violation of the principles of proportionality. In that context they pointed out that the applicant himself had contributed to the unenforceability of the contact arrangements by not having attempted to visit his child during the court proceedings for the rebuttal of the presumption of paternity, despite the fact that he had been bound to do so by a court settlement. Furthermore, he had attempted to exercise his contact rights only twice subsequent to the court settlement. The authorities had tried to strike a sensitive balance between the interests of the parties concerned. The applicant ’ s interests had also been taken into account by the courts in that at some point there had been a change of venue for the visits. However, the applicant ’ s lack of cooperation was indicated by the fact that he had not attempted to establish any contact with the child once the mother had changed her place of residence. Furthermore, even after the Kúria ’ s final decision, the applicant had still failed to exercise his contact rights.

31 . The applicant submitted that his contact with his child had been frustrated because of the obstructive behaviour of the mother and her own parents. The relationship between him and the mother was so bad that no contact had been possible without some form of conflict unless someone from the Child Custody Authority was present. Although the authorities had been aware of the situation, no action had been taken to resolve the issue in such a way that the child ’ s emotional development would not be harmed. In the light of the Kúria ’ s decision, the applicant found it unfortunate that on 14 March 2014 the Child Custody Authority had again ordered the enforcement of the contact at the mother ’ s place of residence and had not rearranged the manner in which the contact had to be carried out. He contended that he had not been liable for the failure of the contact arrangements. All attempts to keep up contact had remained unsuccessful largely because the domestic authorities had failed to rearrange the manner of contact in a way that would have secured the child ’ s best interests.

32 . The Court reiterates 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. 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 include an obligation for the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions. This also applies to cases where contact and custody disputes concerning children arise between parents and/or other members of the children ’ s family (see Ribić v. Croatia , no. 27148/12, § 89, 2 April 2015). Effective respect for family life requires that future relations between parent and child be determined solely in the light of all the relevant considerations and not by the mere passage of time (see Diamante and Pelliccioni v. San Marino , no. 32250/08, § 177, 27 September 2011).

33 . The national authorities, by having the benefit of direct contact with all persons concerned, are better placed to judge what is in the best interests of the child and to take the necessary measures in this respect (see, among many other authorities, Dobrescu v. Romania (dec.), no. 10520/09, § 42, 31 August 2010). Where the measures in issue concern disputes between parents over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their discretion. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance (see Diamante and Pelliccioni , cited above, §§ 173-77; Zawadka v. Poland , no. 48542/99, § 54, 23 June 2005; and Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299-A).

34 . The Court further reiterates that active parental participation in proceedings concerning children is required under Article 8 of the Convention in order to ensure the protection of their interests, and that when an applicant applies for enforcement of a court order, his or her conduct as well as that of the courts is a relevant factor to be considered (see Glaser v. the United Kingdom , no. 32346/96, § 70, 19 September 2000; Fuşcă v. Romania , no. 34630/07, § 38, 13 July 2010; and Cristescu v. Romania , no. 13589/07, § 59, 10 January 2012 ).

35 . The Court ’ s task in the present case is therefore to examine whether the measures taken by the domestic authorities were as adequate and effective as could reasonably have been demanded in the circumstances of the case in order to enforce the applicant ’ s contact rights or otherwise facilitate reunion between him and his daughter. In doing so, the Court will also consider the applicant ’ s own conduct.

36 . The Court first observes that the applicant was granted contact and visiting rights by the settlement approved on 26 April 2010 by the Nyíregyháza District Court and that this decision remained in force until the Kúria ’ s decision in the civil proceedings, given on 25 March 2014. It notes that the administrative enforcement of the contact rights and the judicial rearrangements of their conditions were dealt with on two different legal pathways. It is the former one, concerning de facto contact with the child, of which the applicant appears to complain predominantly.

37 . The Court observes that, on settling the case before the District Court, the applicant agreed on the venue for the visits of his own accord. Significantly, the Kúria observed in its decision (see paragraph 22 above) that the settlement in relation to the contact rights had never worked out, for which the applicant was principally liable, in that during the proceedings for rebutting the presumption of his paternity he had not attempted to visit the child even though he had been granted visiting rights.

38 . As regards the ensuing period of about three years, that is to say, the duration of the actual enforcement proceedings, the applicant carried out one visit while another attempt at a visit was aborted when he did not enter the home (see paragraphs 8 - 10 above); he also filed one request for enforcement of contact and one for suspension of contact, as well as one seeking the support of the Child Custody Authority (see paragraph 13 above). The Court also observes that the applicant did not attempt to carry out any further visits, even after the child ’ s mother had moved out of her parents ’ home, in the period up to and following the Kúria ’ s decision. In view of these elements, the Court is not persuaded that the applicant pursued his case with the requisite diligence.

39 . The Court further observes that when the applicant turned to the Child Custody Authority, the latter allowed his request for enforcement of contact without undue delay; the request he lodged on 22 February 2011 was granted on 31 March 2011 (see paragraph 13 above). In that decision the Child Custody Authority ordered the enforcement of contact, calling on the mother to comply with the applicant ’ s access rights in line with the settlement and without her parents being present. Even though the Child Custody Authority did not impose any fine on the mother at that time, the Court finds that the measure applied was one with a gradual approach and therefore it could not be considered inadequate since it was the applicant ’ s first request for enforcement of contact. In the absence of any further requests on the part of the applicant, the Child Custody Authority could not make any other decisions on enforcement in support of the applicant ’ s case.

40 . It is true that the applicant requested the judicial rearrangement of his contact rights (see paragraph 18 above) because he felt that further visits under the existing conditions would result in further conflict, which would also be harmful to the child ’ s best interests. In this context, the Court notes that the enforcement of contact rights and their rearrangement are two different legal matters. Therefore, the mere fact that litigation with a view to rearrangement was ongoing did not exempt the applicant from the obligation of actively participating, as a parent, in the enforcement proceedings, yet he remained inactive in those proceedings, unlike the mother, who lodged multiple requests with the Child Custody Authority.

41 . As regards the rearrangement of the contact rights, the Kúria disagreed with the High Court – which, for its part, attached particular importance to the circumstance that the mother had moved out of her parents ’ home, and according to which the conditions that the applicant complained of no longer existed. The Kúria quashed the High Court ’ s decision, and found for the applicant, rearranging his contact rights to the effect that visits would take place in a neutral environment (see paragraph 22 above). It observed that the problem of hostile relationships between the child ’ s parents and their respective families persisted; it held that the relationship would have to be built up anew between the applicant and the child; and, approving the gradual approach of the District Court, it found that the visits were to take place in a neutral environment with the support of professionals.

42 . The Court finds no reason to doubt that the final decision given by the Kúria was indeed based on the best interests of the child. That court examined numerous relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child, as required by the Court ’ s case-law (see, mutatis mutandis , Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010).

43 . In the light of the foregoing, the Court is satisfied that the national authorities took all the necessary steps to facilitate reunion between the applicant and his child that could reasonably have been expected in the light of the delicate family situation present in the instant case. In the absence of any indication of a violation of the applicant ’ s rights under Article 8 of the Convention, the application is manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 September 2020 .

Ilse Freiwirth Branko Lubarda Deputy Registrar President