FOURTH SECTION

DECISION

Application no. 50963/16 Lajos Attila SZABÓ against Hungary

The European Court of Human Rights (Fourth Section), sitting on 5 May 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 25 August 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Lajos Attila Szabó, is a Hungarian national, who was born in 1973 and lives in Budapest. His application was lodged on 25 August 2016. He was represented before the Court by Mr Cs. Mester, a lawyer practising in Budapest.

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

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

2 . In 1995 the applicant married A. The applicant ’ s wife gave birth to four children: M. in 1995, J.V.in 1998, R.S. in 2005 and J. in 2011.

3 . In 1995 the applicant was sentenced to a prison term of one and a half years.

4 . Despite a number of interruptions, the couple lived together until June 2013, when A. moved to London with her minor children, J.V., R.S., and J.

5 . On 11 October 2013 the applicant applied to the Hungarian Ministry of Justice with a view to having his chi ldren returned to Hungary under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The application was received by the Royal Courts of Justice and dismissed on 17 January 2014 under Article 13(b) of the Hague Convention on the grounds that the children ’ s return would expose them to grave psychological, and possibly also physical harm. The court found that given the long history of physical and verbal violence within the family, the children ’ s mother could not ensure in Hungary an environment without abuse, despite her efforts. Thus, the court concluded that if the children were returned to Hungary, they would be placed in an abusive environment due to the applicant ’ s behaviour.

6 . On 10 July 2013 the applicant initiated custody proceedings in respect of J.V., R.S. and J. before the Budapest XXI, XXI and XXIII District Court. Meanwhile A. initiated divorce proceedings.

7 . On 15 November 2013 the District Court held the first hearing and joined the custody and divorce proceedings. The applicant was heard.

8 . The applicant requested that an interim contact order be issued pending the outcome of the civil proceedings. He also requested custody of the children with child allowance paid by A.

9 . On 2 December 2013 the District Court rejected the applicant ’ s request, finding that since the children had no passports, they would be unable to return to the United Kingdom following a visit to Hungary. The court held that as return proceedings were at that point still pending before the Royal Courts of Justice, that preliminary question had to be decided before determining custody.

10 . On 7 March 2014 the District Court held a hearing at which both the applicant and A. gave testimony. A. stated that she had been physically and verbally abused and threatened by the applicant and that the children had also been subjected to regular verbal abuse. She also submitted that she had moved out of the common household on a number of occasions: she had stayed in a shelter for mothers with her youngest child and, for a period of a year and a half, had left the children with the applicant.

11 . On 6 May 2014 the District Court issued an interim contact order granting the applicant contact with the children via Skype, email and telephone. It also ordered the applicant to pay monthly child allowance in the amount of 15,000 Hungarian forints per child. The court found it relevant that the applicant had announced that the children would not be returned to their mother following their stay in Hungary; it therefore rejected his request that the visits take place in Hungary. The applicant appealed against the decision.

12 . On 15 May 2014 the District Court heard the applicant ’ s eldest son, M., who stated that as a child, he had feared the applicant for he had often been verbally aggressive. He recounted the physical abuse his mother had suffered at the hands of the applicant. He also stated that the applicant had kicked J.V. The applicant submitted comments in response to M. ’ s testimony and put questions to the witness.

13 . On 11 July 2014 the District Court held a hearing at which the applicant requested an adjustment of his contact rights during the summer holiday. The applicant and A., as well as A. ’ s father, were heard. A. ’ s father stated that he had witnessed the applicant physically abusing A. and being verbally abusive towards the children, and that A. had tried to end the relationship a couple of times.

14 . On 10 September 2014 the Budapest High Court, acting as a second-instance court, overturned the District Court ’ s decision of 6 May 2014 and granted the applicant contact every first weekend of the month, between 9 a.m. and 4 p.m. on Saturdays and Sundays. It also held that the visits should take place in London. Having reasoned that the relationship between the applicant and A. had been full of conflict and that the applicant ’ s conduct towards A. and the children could qualify as domestic violence, that the Royal Courts of Justice had dismissed an application for the children ’ s return for fear of harm, and that J.V. had objected to returning to Hungary, the second-instance court found that the children could not be taken away from the United Kingdom. On the other hand, the court also ruled that the fact that the applicant and A. had constantly re-established their relationship and that the applicant had looked after the children for months when the couple had been separated gave grounds to believe that it was not justified to deprive the applicant of his right to contact and visit his children.

15 . On 19 November 2014 and 11 March, 22 April and 24 November 2015 the District Court held further hearings at which the applicant and A. were heard. The applicant submitted that he had tried to contact his children via Skype and on the phone but A. had refused to allow those contacts to take place. In subsequent testimony he stated that he had had sporadic contact with his children. The court also heard witness statements from A. ’ s father and her new partner, who provided details about the children ’ s upbringing in London. The parties were questioned about their financial situation and capacity to raise the children. The court also commissioned a psychological expert opinion in respect of both parents.

16 . On 22 April and 14 September 2015 the applicant made further applications for interim contact orders, seeking modification of his visiting rights for the summer holidays and subsequently full custody of the children.

17 . On 1 August 2015 the applicant tried to see his children in London, but could not exercise his contact rights because A. had submitted a wrong address during the court proceedings.

18 . An application lodged by the applicant for an interim measure granting him extraordinary contact during the winter holiday was dismissed on 12 December 2015 by the District Court. The court noted that although the applicant had been granted visiting rights on 10 September 2014, he had only tried to visit his children once. It held that a prolonged stay with the applicant would endanger the children ’ s physical and emotional well-being. That decision was upheld by the second-instance court on 2 March 2016.

19 . A further application lodged by the applicant for an interim measure placing the children in his custody was dismissed on 8 April 2016 by the District Court.

20 . On 13 July 2016 the court rejected an application lodged by the applicant for an interim contact order for the summer period. It reasoned that the applicant had tried to visit his children only once in London and, that in the three years since the couple ’ s separation, he had made no further attempts to visit his children.

21 . A further hearing scheduled for 23 May 2016 was adjourned until 30 August 2016 because the District Court had omitted to summon A. to the hearing. The applicant submitted that he intended to provide observations in response to the psychologist ’ s expert opinion, which he subsequently failed to do despite receiving an instruction that his submissions had to be filed within fifteen days.

22 . A further application lodged by the applicant on 9 December 2016 for an interim contact order for the period from 20 December 2016 to 2 January 2017 was rejected at a court hearing on 12 January 2017. The District Court emphasised that the applicant ’ s contact rights had already been regulated by the enforceable decision of the Budapest High Court and had to be carried out in accordance with that ruling. Moreover, the applicant had not submitted any reasons for the court to overturn that decision.

23 . By a judgment of 27 January 2017 the District Court dissolved the couple ’ s marriage and placed R.S. and J. in the mother ’ s custody. The applicant was granted the right to contact his children via telephone and email every Tuesday and Thursday between 7 p.m. and 7.30 p.m. He was also granted monthly supervised visiting rights in the town of the mother ’ s residence and supervised visiting rights on the second day of each public holiday. As of 1 November 2017, the applicant was granted unsupervised visiting rights.

24 . Following appeals lodged by both the applicant and A., the Budapest High Court upheld the judgment on 14 June 2017.

25 . Act No. IV of 1952 on Marriage, Family and Guardianship (“the Family Act”) as in force at the material time, provided, in so far as relevant, as follows:

Section 72/A

“(1) A decision on the child ’ s placement shall be taken by the parents. In the absence of an agreement between the parents, the court shall place the child with the parent with whom the child ’ s physical, mental and moral development is better ensured. Where the child ’ s placement with his or her parent endangers the child ’ s interests, the court may place the child in the care of another person too, provided that that person has requested the child ’ s placement with him or her.

(4) Where immediate action on the child ’ s placement is needed, the court shall issue a decision with urgency by way of an interim order.”

Section 92

“(1) A child has the right to maintain personal and direct contact with the parent living separately. The parent living separately 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.”

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

Interim measures

Section 156

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

...

(3) The court shall give priority to examining applications for interim measures.

(4) Before taking a decision, the court shall hear the parties in person or shall enable them, if they so 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 given deadline or time-limit.

(5) In deciding on an application for an interim measure, evidence shall only be taken where the application cannot be decided on without the taking of evidence.

(6) The court shall decide on the application for an interim measure in an order, against which a separate appeal may be lodged ...”

COMPLAINTS

27 . The applicant complained under Articles 6 and 8 of the Convention about the loss of contact with his children due to the alleged failure of the domestic courts to conduct the custody proceedings in a fair and timely manner.

THE LAW

ALLEGED VIOLATION OF ARTICLES 8 and 6 OF THE CONVENTION

28 . The applicant submitted that he had had no contact with his children during the divorce and custody proceedings, in particular owing to the unfair decisions of the domestic courts. He relied on Article 8 of the Convention. Under Article 6 he complained of the excessive length of the entire proceedings, which he alleged had caused him to lose contact with his children. The relevant Articles, in so far as relevant, read as follows:

Article 8

“1. Everyone has the right to respect for his ... family life ...

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.”

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.”

29 . T he Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I ). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia , family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 ( see Diamante and Pelliccioni v. San Marino , no. 32250/08, § 150, 27 September 2011, with further references).

30 . In the instant case the Court considers that the complaint raised by the applicant under Article 6 is closely linked to his complaint under Article 8, and may accordingly be examined as part of the latter complaint (compare Diamante and Pelliccioni, cited above, § 151).

31 . The applicant submitted that he had had no contact with his children during the divorce and custody proceedings. The domestic courts had dismissed his applications for interim measures based on the outcome of the proceedings before the Royal Courts of Justice, in which he had been unable to participate. In any case, the Hungarian courts had not adjudicated his requests in a timely manner and the proceedings had lasted for more than three years. Throughout that time he had been unable to see his children.

32 . The applicant also maintained that his visits and contacts with his children had been frustrated because of his wife ’ s obstructive behaviour, which the domestic courts had not taken into consideration when dismissing his applications for interim measures. A. did not have the necessary capacity to raise the children and had left the family on a number of occasions.

33 . As regards the adjudication of the applicant ’ s applications for interim measures, the Government submitted that the domestic courts had taken their decisions in a timely manner and based on a balanced examination of all the interests at stake. As the applicant had said that the children would not be returned to the United Kingdom from Hungary, the domestic courts had rightly concluded that the children ’ s best interests would be served if the applicant exercised his visiting rights in London.

34 . The Government also argued that the exercise of contact rights should not endanger children ’ s well-being. In the present case, however, the couple ’ s relationship had been strained and there had been enough evidence to infer that the applicant had been abusive towards his partner and children. In the Government ’ s opinion, the fact that the applicant had been subject to eight sets of criminal proceedings in the period from 1992 to 2010 was also an indication of his violent conduct.

35 . The Government further pointed out that as of 10 September 2014 the applicant had been entitled to regularly visit his children but had tried to exercise his visiting rights only once. Instead of following the court order of 10 September 2014, he had regularly applied for interim contact orders. Furthermore, he had failed to pay child allowances.

36 . The Government concluded that t he domestic authorities had therefore taken all reasonable measures to ensure that the applicant could maintain his relationship with his children.

37 . As to the length of the proceedings, the Government submitted that the domestic courts had held thirteen hearings at regular intervals, heard nine witnesses and decided on the applicant ’ s requests in a timely manner. Furthermore, the applicant had contributed to the protraction of the proceedings, since he had failed to comply with the court ’ s order to provide evidence as to his financial status and to comment on the expert evidence.

38 . 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 ).

39 . Given that 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), ineffective, and in particular delayed, conduct of custody and contact proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05, § 127, 1 December 2009). Therefore, in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty, which is decisive in assessing whether a case has been heard within a reasonable time as required by Article 6 § 1 of the Convention, also forms part of the procedural requirements implicit in Article 8 (see Strömblad v. Sweden , no. 3684/07, § 80, 5 April 2012).

40 . Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003 ‑ VIII) . Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (ibid., § 66).

41 . Turning to the circumstances of the present case, the Court notes that the applicant was granted contact and visiting rights by a decision of the Budapest High Court of 10 September 2014 and that that decision remained in force until the end of the divorce and custody proceedings. As it appears from the case file, the applicant had continuous, albeit sporadic, contact with his children via emails and Skype. While it is true that the applicant ’ s only attempt to visit his children in the United Kingdom was frustrated due to A. ’ s conduct, the Court cannot but note that he took no further steps to enforce his right to visit or exercise his access rights on any other occasion. Accordingly, his applications for interim measures were not related to enforcement following failed visits, but to the eventual modification of the established visiting arrangements, without providing any evidence of changed circumstances. Moreover, t he Court finds no confirmation of the applicant ’ s allegation that he could not contact his children because of A. ’ s hostile behaviour.

42 . Having examined the domestic courts ’ decisions at issue (see in particular paragraphs 14 and 18 above), the Court finds no reason to doubt that they were based on the best interests of the children. The domestic authorities examined a whole series of 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 children, as required by the Court ’ s case-law (see, mutatis mutandis , Neulinger and Shuruk v. Switzerland [GC], no. 41615/07 , § 139, ECHR 2010). In particular, they assessed each parent ’ s financial and living conditions, the quality of care they could provide to the children and their relationship with the children. In this latter aspect, they had particular regard to the fact that the children had witnessed the applicant being physically abusive towards their mother and that they had encountered verbal abuse from the applicant themselves. The Court also accepts the domestic courts ’ conclusion that bringing the children back to Hungary to meet their father would not have served their best interests, since it was likely, based on the applicant ’ s own statements, that they would not have been returned to their mother, upsetting their established way of life.

43 . The Court further notes that the decisions concerning the applicant ’ s applications for interim measures and the final decision on custody were reached following adversarial proceedings in which the applicant had been placed in a position enabling him to put forward all of his arguments in support of his application for interim contact and for custody in his favour. He also had access to all relevant information that was relied on by the courts. He could question both A. and the witnesses put forward by her, submit extensive written pleadings to the domestic courts and provide his observations on the psychologist ’ s expert opinion. Contrary to the applicant ’ s allegations, the decisions were not based on the outcome of the proceedings before the Royal Courts of Justice but on the assessment of all relevant circumstances as presented before the Hungarian courts.

44 . As to the applicant ’ s complaint that the proceedings were unreasonably lengthy and that the domestic courts did not decide on his applications for interim measures in a timely manner, while the Court finds that the proceedings at issue were indeed lengthy as they took three years and eleven months to be concluded for two levels of jurisdiction (from 10 July 2013 to 14 June 2017), it notes that various orders were issued and arrangements made in the meantime. The Budapest High Court issued an enforceable decision on the applicant ’ s vi siting and contact rights on 10 September 2014, which remained enforceable until the conclusion of the domestic proceedings and which would have allowed the applicant to maintain contact with his children.

45 . The Court also observes that the applicant ’ s own procedural activity influenced the overall duration of the proceedings. While it is true that b y lodging applications for interim contact orders and appealing against their refusal, he had been exercising his procedural rights with the aim of effectively presenting his case and ensuring its fair and thorough examination, the Court notes that by lodging those applications, the applicant sought the reconsideration of the contact and visiting arrangements without making a genuine effort to implement or enforce the original court order of 10 September 2014 granting him access rights. It also transpires that his repetitive applications for interim measures were followed up by the domestic courts. The Court also notes the Government ’ s argument that the applicant failed to comply with the procedural orders (see paragraphs 21 and 37 above).

46 . It is evident from the facts of the case that there were no significant periods of inactivity and the courts held altogether thirteen hearings at regular intervals. Although the proceedings were lengthy, there is no indication that the applicant ’ s relations with his children were determined by the mere passage of time. The Court therefore accepts that overall, the domestic courts have dealt with the proceedings with the requisite diligence.

47 . Having regard to the State ’ s margin of appreciation in this sphere and having considered the case as a whole, the Court is satisfied that the domestic courts took the necessary steps to facilitate the applicant ’ s reunion with his children, and based their decisions on the best interests of the children while adequately involving the applicant in the decision-making process.

48 . The Court therefore finds that the applicant ’ s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 May 2020 .

Ilse Freiwirth Branko Lubarda Deputy Registrar President