Information Note on the Court’s case-law No. 61
February 2004
Kosmopoulou v. Greece - 60457/00
Judgment 5.2.2004 [Section I]
Article 8
Article 8-1
Respect for family life
Adequacy of measures taken to ensure enforcement of mother’s access to her child: violation
Facts: Following the breaking of her marital relationship in 1996, the applicant left her home and temporarily settled in England. Her daughter, who at the time was 9 years old, stayed with her husband. Some months later, the father was granted custody of the child. The Court of First Instance accorded the applicant interim visiting rights in mid-1997. As the child refused to stay with her mother, the applicant’s visiting rights were provisionally suspended (to be, however, subsequently restored). Towards the end of 1997, upon request of the applicant to the public prosecutor, a psychiatric report was drawn up, which stated it was necessary for the child to be reunited with her mother on a regular basis. The report was sent to the public prosecutor, who took no further action. Early in 1998, the child again refused to stay with her mother. The subsequent actions/appeals by the applicant up to the Court of Cassation, in which she blamed her former husband for preventing contact with her daughter, were dismissed.
Law: Article 8 – The applicant’s visiting rights were suspended shortly after they had been granted by the Court of First Instance, without hearing representations from her and at a moment which was crucial with a view to facilitating reunification of the child with the mother. Although it was not for the Court to evaluate how domestic courts had protected the child’s interest, it was striking that no action had been taken following the recommendation in the psychiatric report that regular contact of the daughter with the applicant was advisable. This report had not been disclosed to the applicant at the time of its preparation (she only obtained a copy in 2002), despite the importance reiterated by the Court that parents should always be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child. Furthermore, a medical report by three psychologists in the early stages of the access proceedings had been elaborated without examining the applicant. It followed that the applicant had not enjoyed the appropriate procedural guarantees which would have enabled her to challenge effectively the suspension of her visiting rights. The Court was not satisfied that the procedural approach adopted by the domestic courts was reasonable in all the circumstances or provided them with sufficient material to reach a reasoned decision on the question of access to the applicant’s daughter.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant 10,000 euros in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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