Udvalgte passager fra afgørelsen:

Indledende bemærkninger:

88. 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 (…).

89. 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 (…).

90. The Court notes that in the present case, as a result of delays in the
custody and contact proceedings (…), and the subsequent non-enforcement of the judgment granting the applicant contact rights (…), the applicant had seen his son only three times during his entire childhood.91. The Court considers that such a lengthy period during which the applicant was unable to maintain contact with his son is a priori in breach of the State’s positive obligations under Article 8 of the Convention and could be justified only in exceptional circumstances. The facts of the present case therefore call for a global assessment in the light of the relevant principles emerging from the Court’s case-law (…). The Court therefore does not find it necessary to reproduce the parties’ arguments in detail.

Relevante principper:

92. Given that an 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 (…), the 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 (…) as procedural delay may lead to a de facto determination of the matter at issue (…). 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 (…).

93. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive in any assessment of the national authorities’ conduct is whether they have taken all necessary steps to facilitate the execution that can reasonably be demanded in the specific circumstances of each case. The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between a child and the parent who does not live with him (…).

94. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute. It is an obligation of means, and not one of result. The establishment of contact may not be able to take place immediately, and may require preparatory or phased measures. The cooperation and understanding of all concerned will always be an important ingredient. However, 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 best interests of the child as primary consideration (…).

95. While the national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention (…). Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of t of unlawful behavior by the parent with whom the children live (…).” .