July 10, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In a nutshell, the case stands for the proposition that, in the European Union, the failure of a family court to enforce its own orders of contact between a parent and a child can constitute a violation of Section 8 of the European Charter of Human Rights. As such, the wronged parent can receive an award of money damages from the European Court of Human Rights to be paid by the state in question. Here’s Section 8:
“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.”
That of course is jolly good, but utterly fails to assist the parent in seeing his child. The case Bolch links to makes it crystal clear that all the father wanted was to see his daughter, not the EUR 12,000 the court awarded him.
And, what both Bolch and the ECHR miss is that the mother in the case was actively alienating the daughter from her father while the family court dithered.
To readers of this blog, the case of Malec vs. Poland will sound all too familiar. Malec and E., the child’s mother, were married in 1997 and had a child, N., in 2004. By 2008, they had split up and primary custody had been given by a court to E. There followed immediately E.’s efforts to keep N. from her father and eventually to establish her active dislike of him. And, as we see so often, the Polish family court proved entirely ineffective at policing E.’s behavior or enforcing its own contact orders.
The ECHR’s recitation of the facts of Malec’s efforts to simply see his daughter reads like a portion of Kafka’s “The Trial.” A system better designed to thwart, frustrate and eventually drive mad the father could hardly be imagined. According to Bolch, Malec made at least 50 different applications for enforcement of his contact order, some of which were granted and some of which were denied.
But those that were granted were utterly ineffective at altering E.’s behavior. At one point, the court fined her EUR 1,000, which she paid. It made no difference; E.’s next move was to vacate her residence so Malec couldn’t locate her. She did so even though the court required her to have her correct address on file with the court.
As the case dragged on and on, through countless court hearings and appeals, (who knows what it cost Malec to pursue the matter?) E. actually managed to reduce Malec’s parenting time. She did that by convincing N. that she didn’t like her father and that he was a danger to her. This standard of every parental alienator was taken at face value by the court and allowed to continue.
Needless to say, mental health professionals were called in. Apparently as ignorant of parental alienation as the judge, they concluded that family therapy was called for. This despite the fact that E. had demonstrated herself to be unwilling and unable to do anything cooperatively over the years of their pending divorce and afterward. Why the psychologists believed that she’d be any more cooperative in their offices than she’d been in court is anyone’s guess.
Like so many cases of parental alienation, this one includes adults allowing a child to dictate the terms of a parent’s access to her. In a nutshell, N. eventually announced that she didn’t want to see her father except at certain times and the court redrew its order to accommodate her. That’s putting the matter exactly backwards. Alienating parents very commonly point to the evidence of their successful alienation – the child not wanting to see the targeted parent – as proof that the target is a bad parent and should be removed or sidelined in the child’s life.
In fact, the opposite is true. First, parents who don’t alienate make it clear to their children that it’s not up to them whether they see the other parent or not. A court’s orders are to be followed and the child has little to say about the matter. Second, a court that finds a child to have been alienated should respond, not by acceding to the child’s demands, but by enforcing parenting time. That means giving the targeted parent makeup time or, in some cases, transferring custody. Parental alienation is child abuse. Its goal is the removal of one parent from the child’s life and courts should nip it in the bud.
They rarely do. Malec’s case is one of many in which a court’s unwillingness to enforce its own orders abet the alienating behavior. The court and the alienator in effect make common cause.
Malec endured this torture for four years before turning to the ECHR for redress. Although the ECHR’s opinion isn’t clear on the matter, it seems that the Polish court never did adequately resolve its incompetence at dealing with a mother determined to deny a child her father. Again, the ECHR can’t enforce the father’s right of access; it can only award him money damages for the Polish court’s failure to do so. I suspect that’s cold comfort to Malec.
Will this opinion encourage European courts to take their own orders of access more seriously? I doubt it. After all, what can EUR 12,000 mean to the Polish government? Certainly it’s a good precedent to have set, but its practical results beyond this case look to be negligible.
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#divorce, #childaccess, #parentalalienation, #EuropeanConventiononHumanRights