Information Note on the Court’s case-law No. 129
April 2010
Macready v. the Czech Republic - 4824/06
Judgment 22.4.2010 [Section V]
Article 8
Article 8-1
Respect for family life
Failure to ensure father’s right of contact during proceedings for return of son who had been taken abroad by the mother: violation
Facts – The applicant, an American national, lived in the United States with his wife and their son, who was born in December 2002. In May 2004, following a divorce petition filed by the applicant, an interim joint guardianship order was put in place. However, the mother took the child to the Czech Republic without the applicant’s consent. In June 2004 she was awarded custody of the child by a decision of a Czech court that had not been informed of the boy’s illegal removal. The applicant brought proceedings in the Czech Republic in October 2004 and the child’s return to the United States was ordered in April 2005. Following an appeal by the mother, the court ordered an expert report. In reliance on the expert’s conclusions, it overturned the judgment of the first-instance court in June 2006 on the ground that the child’s return to the United States might cause him irreparable harm that risked causing a deterioration in his mental health. Appeals by the applicant were dismissed in February and September 2007. Lastly, from October 2004 onwards the applicant made a series of requests for interim measures allowing him to meet with his son during his visits to the Czech Republic. Although the mother appealed against most of the decisions, some meetings between father and son were organised up until January 2006.
Law – Article 8: The bond between the applicant and his son came within the scope of family life within the meaning of Article 8. Furthermore, the Hague Convention on the Civil Aspects of International Child Abduction – with whose underlying philosophy the Court was in full agreement – applied to the mother’s removal of the child to the Czech Republic in May 2004. In the present case more than twenty months had elapsed before the lower courts adopted the decision finally determining the question of the child’s return to the United States. A period of that length had made it practically impossible to re-establish the previous position. The child would have had to be taken back to an environment from which he had been removed at the age of eighteen months and which was now no longer familiar to him. This would have been a particularly difficult experience in his case because he had been diagnosed as autistic and thus requiring stability and minimum change to his routine. Moreover, the Czech courts had had to wait for the outcome of the proceedings concerning the child’s return before ruling on the question of parental responsibility. Throughout that entire period, therefore, the only means by which the applicant had been able to exercise his parental rights had been by virtue of interim measures granting him a right of contact during his visits to the Czech Republic. Those visits could only be occasional because he lived and worked in the United States. In that connection the Court was forced to the conclusion that although the courts had been informed, admittedly ex post facto, of the difficulties encountered by the applicant during his visits, they had not taken any appropriate measure of their own initiative to create the necessary conditions for the future to ensure that the applicant could exercise his right of contact. In the context of the case the domestic courts could have envisaged taking coercive measures against the mother or requested the assistance of social services or child psychiatrists or psychologists to facilitate contact. Those considerations sufficed to conclude that respect for the applicant’s family life had not been effectively protected.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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