SECOND SECTION

DECISION

Application no . 40950/08 Mihály HÍR against Hungary

The European Court of Human Rights (Second Section), sitting on 7 April 2015 as a Committee composed of:

Helen Keller, President ,

András Sajó,

Robert Spano, judges ,

and Abel Campos, Deputy Section Registrar ,

Having regard to the above application lodged on 21 August 2008,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mihály Hír, is a Hungarian national, who was born in 1968 and lives in Zalaegerszeg. He was represented before the Court by Ms M. Regász, a lawyer practising in Budapest.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant lived in a common-law marriage with Ms Z.N. The couple had one son, M.H., born on 11 April 1993 and one daughter, Cs.H., born on 25 August 1999.

4 . In 2004 the couple separated and agreed on the children ’ s custody and other parental rights. This agreement was confirmed on 12 May 2004 by the Zalaegerszeg District Court, which granted the parents joint custody of their children and placed them with their mother.

5 . Subsequently, the applicant and his former common-law wife lodged several criminal complaints against each other, alleging assault, improper conduct and endangering of minors. Except for one case where the applicant was found guilty of improper conduct and violation of domicile, the criminal proceedings were discontinued.

6 . Later on, the mother lodged a motion requesting the termination of the joint custody and the restriction of the applicant ’ s access rights. An expert psychologist commissioned by the court stated that the strained family relations negatively influenced the personality and studies of M.H. The expert also indicated that the arrangements concerning the joint custody were not in the children ’ s best interest, since they were obliged to change their place of residence regularly, depriving them from a stable environment. A further expert opinion provided by the Zalaegerszeg Guardianship Authority similarly stated that the parent ’ s joint custody was not suitable to the children ’ s age. In its decision of 14 December 2005 the District Court modified the applicant ’ s parental rights in that he was granted access rights every last weekend of the month, one day during Christmas, Easter and Pentecost and twice for two weeks during the summer holidays. The remainder of the claim was dismissed. This decision was upheld on appeal on 23 March 2006 by the Zala County Regional Court.

7 . On 8 November 2006 the applicant lodged an action with the District Court seeking the termination of the mother ’ s custody, the placement of the children with him and the re-regulation of access rights. He argued that M.H. had repeatedly run away from his mother and Cs.H. ’ s hostile attitude was due to the mother ’ s negative influence. As an interim measure the applicant requested the placement of M.H. with him, whereas Ms Z.N. requested the suspension of the applicant ’ s access rights in respect of Cs.H. The applicant ’ s request was dismissed, while the mother ’ s request was granted for four months by the District Court on 9 May 2007, on the ground that the applicant had infringed the established rules of contact by visiting his children at school, causing them distress during these meetings. This decision was upheld on appeal by the Regional Court on 17 July 2007, adding that irrespective of the applicant ’ s attitude, M.H. was strongly attached to him emotionally. The court also pointed out that the agreement originally concluded between the parents did not serve the children ’ s best interests any longer. According to the expert psychologist ’ s opinion of 22 June 2007 both children had positive feelings towards their parents, nonetheless M.H. felt closer to the applicant, whereas Cs.H. felt closer to her mother. The opinion also noted that the conflict between the parents negatively influenced the development of M.H.

8 . The applicant also lodged a child protection procedure alleging that the children were abused by their mother and maternal grandparents. His request was dismissed as unsubstantiated; according to the family protection services, the education and care provided by the mother were appropriate. The children ’ s teachers and paediatrician confirmed that they had never noticed any sign of either physical or mental abuse.

9 . The mother ’ s subsequent motion for the restriction of the applicant ’ s access rights was dismissed by the District Court on 14 September 2007; nonetheless the court ruled that the applicant was to exercise his access rights on the premises of the child contact centre of the welfare service. The applicant ’ s meeting with his daughter was scheduled for 22 September 2007, but the mother and the child did not appear. On the subsequent contact dates of 25 September, 6 and 13 October and 3 November 2007 the applicant ’ s daughter appeared but remained hostile towards the applicant. The child welfare service then advised the parties to initiate mediation proceedings for the well-being of the children .

10 . In the custody proceedings initiated by the applicant , the District Court issued its judgment on 9 November 2007 dismissing the applicant ’ s action and terminating the parents ’ joint custody and placing the children under the mother ’ s custody. It modified the applicant ’ s access rights, granting him access to his son every second Saturday, five days during the Christmas period, two days during public holidays and two weeks during the summer period. As regards his contact with Cs.H., the court ordered that for a year the meetings should take place every second Saturday on the premises of the child contact centre of the welfare service. The court based its decision on the expert psychological opinions and reports of the welfare service which have been produced in the different proceedings. According to the court, both parents were emotionally attached to their children, nonetheless their ongoing conflict had a negative influence on the children ’ s development. The court also observed that the parents ’ original agreement and the manner in which it had been implemented was contrary to the best interest of the children, especially since it created a number of conflicts between the applicant and Ms Z.N. It also negatively influenced M.H. ’ s school performance.

Both parties appealed against the first instance decision.

11 . While the civil proceedings were still pending, M.H continued to run away from his mother and encountered problems at school. On 14 January 2008 he was placed by the Zalaegerszeg Police Department under temporary protection and was accommodated at the Zala County Child Care Home until 14 February 2008, when he was returned to his mother.

12 . On appeal, on 21 February 2008 the Regional Court partly modified the first-instance judgment as regards the schedule of the applicant ’ s visits in respect of his son. As to the remainder of the parties ’ claims, the court established that the conflict between the parents and their violent behaviour towards each other, occasionally requiring police intervention, had negatively influenced the mental, emotional and moral development of the children. It also reiterated that the ever-changing environment had undesirable consequences on the children whose school performance and attitudes reflected their feeling of insecurity. The court dismissed the applicant ’ s claim that the mother endangered the well-being of the children and that her hostile attitude was the reason for which Cs.H. refused to meet the applicant. As regards M.H. ’ s request to be placed with his father, the court concluded that due to his age he did not have the requisite capacity to decide on this question without influence and that there was no reason to suspend the custody rights of either of the parents or to order that the children should be brought up separately.

13 . The applicant ’ s petition for review lodged with the Supreme Court was declared inadmissible on procedural grounds on 2 July 2008.

14 . Soon after, Ms Z.N. requested the termination of the applicant ’ s access rights. In his counter-claim the applicant requested the children ’ s placement with him.

15 . On 29 October 2008 the child contact centre of the welfare service informed the District Court that the meetings taking place on the premises of the centre between the applicant and his daughter were detrimental both to the child and the father, and despite the efforts of the centre staff the situation could not be improved. The centre reported that on 25 October 2008 Cs.H. had broken a window with her fist, thrown herself on the floor, insulted her father and had to be restrained so as not to harm herself or others. As of November 2008 Ms Z.N. had not appeared at the centre with the daughter for further meetings. The applicant initiated several enforcement proceedings against her before the Guardianship Authority, and Z.N. was fined for not having complied with the court judgments.

16 . As of June 2008, Ms. Z.N. requested assistance in regard to Cs.H. from the Zala County Hospital ’ s Child Psychiatric Department and asked for the suspension of the applicant ’ s access rights. In its interim measure of 3 April 2009 the District Court suspended the applicant ’ s contact rights, stating that balancing the applicant ’ s parental rights against the best interests of the child, the latter had priority.

17 . According to the testimony of a psychologist G.T., the condition of Cs.H. was deteriorating despite therapy, she had somatic symptoms requiring medical treatment and sustained panic attacks, shock and pre-psychosis each time she was to meet her father. The opinion suggested that the contact between the applicant and his daughter had to be re-regulated.

18 . In April 2010 M.H. moved to the applicant ’ s home and despite the request of his mother did not return to her.

19 . Meanwhile, the civil proceedings were transferred to the Nagykanizsa District Court due to the exclusion of the Zalaegerszeg District Court for bias.

20 . The Nagykanizsa District Court heard testimonies of three employees of the child contact services and of the psychologist treating Cs.H., a certain Dr G.T.

21 . One of these witnesses, J.U., reported an event when, despite the applicant ’ s patient attitude, Cs.H. had become aggressive, wanted to jump out of the window, started to kick her father and the employees of the centre. At a further visit Cs.H. lay down on the floor and cried hysterically. He stated that Cs.H. had very rarely been cooperative and that, according to his opinion, “neither legal, nor social, psychological or psychiatric measures could solve this abnormal situation”.

22 . According to witness Gy.S., all the mediators of the service had been engaged in solving the problem without success and the child contact service had no further means to overcome the conflict. She also maintained not having encountered a case similar to that of Cs.H.

23 . According to the witness testimony of I.Cs., in the beginning the child had remained rather passive but still got engaged in activities with the applicant. Nonetheless, subsequently she did not want to be separated from her mother and always wanted to go home with her. In his opinion such rejection was exceptional for a child of Cs.H. ’ s age.

24 . Dr G.T. testified that Cs.H. ’ s anxiety was not due to the visits but to the fact that she had developed a certain suspicion towards her father. She also stated that the “mother had honestly tried to solve the child ’ s relation [to her father].”

25 . The District Court commissioned a forensic psychologist to perform a complex family assessment and obtained an additional forensic opinion. According to the assessment, Cs.H. “identified herself with the mother” and the applicant ’ s personality caused anxiety and panic attacks with her. The second opinion observed that Cs.H. was emotionally more vulnerable than her brother, had psychosomatic symptoms and was in complete rejection of the applicant. Both opinions contained the view that the brother had a harmonious relationship with the applicant.

26 . The District Court gave judgment on 21 October 2010. It placed M.H. with the applicant and regulated the mother ’ s access rights, thereby respecting M.H. ’ s wishes expressed during the proceedings. It also terminated the applicant ’ s access rights in respect of Cs.H. on the ground that she rejected all forms of contact with her father.

27 . This decision was upheld on appeal by the Regional Court on 5 May 2011. As appears from the case-file, the applicant has been raising his son since then.

28 . Since 19 December 2008 the applicant has apparently had no contact with his daughter.

B. Relevant domestic law

29 . Act no. IV of 1952 on Marriage, Family and Guardianship provides as follows:

Section 1

“(2) In the application of this Act the minor child ’ s interest shall always be taken into account and his or her rights shall be safeguarded.”

Section 92

“(1) The child shall have the right to maintain direct personal contact with his or her parent living separately. Maintenance of regular contact with the child is a right and obligation of the parent living separately (access rights). The parent or any other person bringing up the child shall be under the obligation of ensuring undisturbed maintenance of contact.

(2) A parent shall – unless [subject to a restraining order] – have the right to maintain contact with his or her child even where the parent ’ s custody rights are suspended.

(3) In exceptionally justified cases, in the interest of the child, the parent whose custody was withdrawn by the court ... may also be entitled to maintain contact with his or her child. ....

(4) In absence of agreement between the parents, or in case of dispute between the parents and the guardian, the decision on the maintenance of contact shall be taken by the guardianship authority. The guardianship authority or the court proceeding in marriage- or child-placement-related cases may restrict or terminate this right or suspend its exercise.

(6) The execution of the court decision on the maintenance of contact shall be arranged for by the guardianship authority.”

30 . Government Decree no. 149/1997. (IX.10.) on Child Custody Boards, Child Protection Procedure and Child Custody Board Procedure provides as follows:

Section 28

“(1) The parents, the grandparents, the major siblings ... are all entitled to access.”

Section 30

“(6) The guardianship authority or the court may appoint, as the place of exercising access rights, the [premises of the child welfare centre].”

Section 30/A

“(1) If the parents ... cannot find an agreement about the time or manner of exercising access rights, the guardianship authority shall draw the parties ’ attention to the possibility of availing themselves of ‘ mediation with a view to protecting the child ’ .”

Section 31

“(5) The guardianship authority or the court may – upon request – withdraw the access rights of the person with access if he or she exercises the access rights in grave violation of the interest of the child or the person having custody and by this conduct gravely endangers the child ’ s upbringing and development.”

COMPLAINT S

31 . The applicant alleges a violation of Article 8 of the Convention on account of the domestic authorities ’ failure to enforce his access rights and their subsequent decision to terminate his custody and access rights in respect of his daughter.

THE LAW

32 . The applicant complained that the authorities ’ perceived failure to enforce his access rights and their decisions eliminating his custody and access rights amounted to a violation of Article 8 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.”

33 . The Court observes that from 2004 onwards the applicant ’ s rights regarding his daughter had diminished from full joint custody to a right to supervised contact and subsequently ended up in the termination of his contact rights altogether.

34 . The Court reiterates its well-established case-law according to which domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life (see Hoffmann v. Austria , 23 June 1993, § 29, Series A no. 255 ‑ C). Thus the domestic decisions related to the applicant ’ s contact rights constituted interference with the applicant ’ s family life.

35 . This interference was in accordance with the law, that is, Act no. IV of 1952 and Government Decree no. 149/1997. (IX. 10.).

36 . The Court considers that the impugned measures pursued the legitimate aims of the protection of health and morals and/or the protection of the rights and freedoms of others, namely the child and her mother. It remains to be ascertained whether the measures were necessary in a democratic society.

1. The decision on custody

37 . The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interest at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII).

38 . The Court also notes that were the measures in issue concern parental disputes 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 power of appreciation. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance (see Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299 ‑ A).

39 . In reviewing whether the domestic courts based their decisions on relevant grounds, the Court observes that the domestic courts persistently reiterated the importance of the best interest of the applicant ’ s children. They based their decisions on a number of further considerations, such as the strained relationship of the parents, the inherent problems of joint custody in the original agreeme nt between the applicant and Ms Z.N., the attitude of the parents to overcome the difficulties and their availabilities to provide care for their children. In each of their decisions the domestic courts relied on the detailed and comprehensive assessments of expert psychologists and additional reports from the children ’ s teachers, the children ’ s services, and the other psychologists in charge. These reports were based on the close contact the teachers had with the children, on continuous monitoring by the child welfare services and on the experience emanating from ongoing psychological therapy. Moreover, the parties made a number of written and oral submissions to the courts and the welfare services, which were all taken into consideration and examined in detail.

40 . In particular, in the decision of the 9 November 2007 on the termination of the parents ’ joint custody, the Zalaegerszeg District Court took into consideration that the joint custody did not serve the best interest of the children, since it caused a number of conflicts between the parents with adverse effect on the children ’ s emotional development. Furthermore, it negatively affected M.H. ’ s school performance, since it deprived him of a stable environment. On appeal, the Regional Court reached the same conclusion, namely that the constant changes in the children ’ s environment were damaging to the children who had started to develop attitudes and symptoms reflecting their feeling of insecurity.

41 . In view of the above, the Court is satisfied that the courts ’ decision to terminate the parents ’ joint custody and award sole custody to the mother for the protection of Cs.H. ’ s interest was not unreasonable or disproportionate and that the measure was “necessary in democratic society”.

2. The decisions on access rights

42 . As regards the termination of the applicant ’ s access rights, the Court reiterates that a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see Vojnity v. Hungary , no. 29617/07 , § 41, 12 February 2013 ).

43 . In the present case, the Court notes that the applicant ’ s access rights were first suspended for four months in respect of his daughter by the second-instance decision of the Regional County Court on 17 July 2007 as an interim measure in the ongoing custody proceedings. At that time the court ’ s main reason for the suspension was the applicant ’ s repeated infringements of the established contact rules. The court noted that the continuous disruption of the children ’ s usual lifestyle caused by the father ’ s unannounced visits had different effects on them: while M.H. maintained strong emotional links to his father, the visits were detrimental to Cs.H.

44 . The domestic authorities kept under constant monitoring the relationship between the applicant and his daughter and gave consideration to the question whether less restrictive measures were viable. Accordingly, on 14 September 2007 the Zalaegerszeg District Court dismissed the mother ’ s request for further suspension of the applicant ’ s access rights, finding that the applicant ’ s behaviour did not call for ongoing limitations. The decision also emphasised the need for re-establishing a positive emotional link between Cs.H. and the applicant in a neutral environment and with the help of professionals; and ordered the applicant ’ s visits to take place under the supervision of the child contact centre.

45 . However, the Court notes that on 21 October 2010 the applicant ’ s access rights were altogether terminated by the Nagykanizsa District Court. Relying on the opinions of expert psychologists and psychiatrists, the court found that the applicant ’ s contacts with Cs.H. were detrimental to the child, who had somatic symptoms requiring medical treatment, sustained panic attacks, shock and pre-psychosis each time she was to meet her father and occasionally behaved violently. The Court also notes that by this time Cs.H. was already undergoing psychological treatment.

46 . The Court accepts that there could have been a risk of further deterioration of Cs.H. ’ s emotional development and health, as evidenced by the testimonies of the contact service employees and the psychologists. Furthermore, the Court finds nothing unreasonable in that the domestic courts relied on the opinions of child care professionals suggesting that Cs.H. ’ s case was exceptional and the situation was beyond repair through the means of social or psychological services ( compare and contrast Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000 ‑ VIII ).

47 . Furthermore, the Court emphasises that the Hungarian courts considered the question whether supervised con tacts or the mere suspension of access rights would have been sufficient to allow the child to regain her emotional balance, and only when those less restrictive measures proved to be unsuccessful did they decide on the termination of contact rights.

48 . In this light, the Court finds justified the domestic courts ’ consideration that – given the exceptional circumstances of the case and the ineffectiveness of less restrictive measures – they had no other choice but to terminate the applicant ’ s access rights for the protection of the child ’ s interest. T hus, the measures adopted were based on sufficiently valid reasons and do not appear manifestly arbitrary or disproportionate.

49 . On the whole the Court is satisfied that the domestic courts ’ decisions were based on relevant and sufficient reasons while adequately involving the applicant in the decision-making process. Again, the Court is of the view that the measure can be regarded as “necessary in a democratic society”.

3. Alleged failure of the domestic authorities to enforce the applicant ’ s parental rights

50 . In so far as the applicant argued that the domestic authorities had not ensured his access rights to his daughter throughout the proceedings, the Court reiterates that although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take such measures. This also applies to cases where the contact and residence disputes concerning children arise between parents (see Kosmopoulou v. Greece , no. 60457/00, § 44, 5 February 2004). Moreover, the lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interest of the child (see Zawadka v. Poland , no. 48542/99, § 67, 23 June 2005) which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany , no. 28422/95, § 49, 5 December 2002).

51 . It is evident from the facts of the case that the domestic courts and welfare services promptly followed up the requests of the applicant and Ms Z.N. and considered a number of possibilities to secure the applicant ’ s contact with his daughter. The Court also notes that, in the enforcement proceedings initiated against the mother, the Guardianship Authority decided to fine the mother for non-compliance with the final court judgments. Furthermore, the welfare services undertook additional initiatives to provide opportunity to both the applicant and Cs.H. to develop their relationship, including supervised contacts and constant monitoring. The reason that these contacts were to no avail was Cs.H. ’ s considerable reluctance, rather than the lack of duty of care by the authorities.

52 . The Court reiterates that the national authorities having the benefit of direct contact with all the persons concerned are better placed than the international judge to assess the regime applied to contact rights. In consequence, it is not for the Court to enter into a detailed assessment of the most appropriate contact arrangements (see Diamante and Pelliccioni v. San Marino , no. 32250/08 , § 185, 27 September 2011) .

53 . In these circumstances, the Court is satisfied that the competent authorities – while bearing in mind the difficulties in reconciling the parents ’ opposing positions coupled with the child ’ s clear reluctance to meet the applicant – made reasonable efforts at regular intervals to enforce the applicant ’ s custody rights, thereby observing their positive obligations in this field.

54 . Accordingly, the Court, having regard to the margin of appreciation enjoyed by the competent Hungarian authorities, finds no appearance of a violation of the applicant ’ s right to respect for his family life under Article 8 of the Convention. It follows that 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 30 April 2015 .

Abel Campos Helen Keller Deputy Registrar President