A case note on Pisică v the Republic of Moldova (European Court of Human Rights decision of 29 October 2019): Part 2 – Legal analysis

Introduction

Having conducted a factual analysis in Part 1 , this part will now look at the relevant legal factors and principles which led to the decision that the Moldovan authorities had breached Article 8 in their:

  • Failure to enforce final judgment awarding mother custody.
  • Failure to act with requisite diligence.

It will then consider the positive obligations this case creates for national authorities and legal systems, obligations which should result in positive changes regarding how alienation cases are processed by social authorities and legal systems.

Legal reasoning: assessing failure

The court recognised that there is no absolute duty on a State to ensure that children are reunited with an estranged parent.[1] Building on a principle first set out in a 1996 decision,[2] the Court identified the duty of State authorities to act  with ‘exceptional diligence’ in cases concerning parent-child relationships because the passage of time may result in a de facto determination of the matter.[3] This principle applies especially where the possibility of the de facto alienation of a children from their parent is apparent.  Therefore, the relative duty to reunite alienated parents with their children is only discharged if domestic authorities take all necessary steps to facilitate contact that could reasonably be demanded in the special circumstances of each case.

Applying this approach to the facts of the case, the Strasberg Court noted:

  1. No domestic authority analysed the situation on that day in order to determine whether the failure to reunite the applicant with her children was due at least in part to the actions of the father’s parents and not just to the children’s refusal to cooperate.[4]
  2. No preparatory psychological work was done with the children or their parents to facilitate the enforcement, despite clear signs that the children had been psychologically alienated from their mother.[5]
  3. The authorities’ failure to react to the applicant’s complaints about alienation and to examine the custody case in an urgent matter substantially contributed to the eventual difficulties in enforcing the judgment.[6]
  4. NG asked the court to decide the custody case in a swift manner in July 2013. Despite this request and her many complaints about P.’s actions, the first-instance court took a year and a half to decide. This added to the overall period during which the applicant did not have meaningful contacts with her two children, while P. continued to be able to alienate the children from her with impunity.[7]

Taking ‘the above’[8] into consideration the Court found: “in the present case, the domestic authorities did not act with the exceptional diligence required of them or discharge their positive obligations under Article 8 of the Convention. There has therefore been a violation of Article 8 of the Convention in the present case.”

The Court also made a very important acknowledgement at paragraph 65 of the conflict between children’s wishes and their best interests:

“[Children’s] views are not necessarily immutable, and children’s objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests, especially their interests in having regular contact with their child… In particular, children having the right to express their own views should not be interpreted as effectively giving them an unconditional veto power without any other factors being considered and an examination being carried out to determine their best interests.”

Commentary

This decision is a most welcome development in the often-bleak vista of parental alienation. It very helpfully recognises the negative impact delay can have on the parent-child relationship, and identifies the various dynamics giving rise to and surrounding delays.

Future cases might expand on the Court’s finding of a duty to reunite children with their estranged parent(s). For example, where alienation tactics are deliberately carried out by one parent, does this give rise to an enhanced duty on a Court to take radical or extreme steps to right the wrong? In other words, should the measures adopted by a court be proportionate response to the steps taken by the custodial parent to alienate? If not, then a custodial parent will benefit from the situation they created, as some Courts refrain from making certain orders out of fear of doing more damage. This dynamic is typical of high conflict access cases and is a breach of the principle Ubi jus ibi remedium.[9]

Before looking at the immediate and long-term impact of this decision across Europe, it is instructive to relate the facts of Pisică with the Irish system.

District Court Practice

A summons for a District Court access order or breach of an access order can be issued with relative ease by attending the relevant District Court office. This is usually done where parties are not married. The return date is usually more than six weeks, sometimes more than ten weeks, later. If a judge has too many other matters to hear a case on the first return date, then a case is adjourned to a date over 12 weeks away. Subsequent adjournments might occur where a report is ordered, where a judge with seisin of the case is not available, expert witness difficulties etc.

Consequently, estranged parents often must wait for more than a year before a determination is made in access/custody cases. Even then, an unhappy litigant might appeal the decision to the Circuit Court which can take a further year to conclude. An access order made at District Court level continues in force until the appeal is determined. A custodial parent has two opportunities to seek a stay on the access order pending the appeal: they can ask the District Court judge who heard the case or apply to the Circuit Court.

There is currently no formal procedure for seeking priority in District Court cases where access is not taking place.[10] Solicitors might write to the President of the District Court if there is an exceptional backlog of cases to seek the appointment of an extra judge. However, such judges are unlikely to assist in alienation cases due to the need for judicial continuity.

Circuit and High Court Practice

Access and custody matters are usually determined at the end of Circuit or High litigation, along with the disposal of assets etc. However, interim access orders can be made where one party issues a Motion – with facts asserted in an affidavit. Such motions can be heard within six months, where reports are ordered and completed promptly.

Custodial parents often delay the hearing of the Motion by objecting to the need for a report, dragging their feet in terms of attending appointments and filing affidavits which distract from the central issues pertaining to access. In the writer’s experience, few Judges make interim directions which deter, punish or denounce such tactics. Consequently, access litigation often becomes an exercise in character assassination and adds to the animosity between the parties.

Impact – exceptional due diligence

By far the greatest impact this decision will have regards the positive obligations, or positive steps now required of national authorities (including Courts) in alienation cases. Where alienation is present, a duty to act with exceptional due diligence applies. Two immediate consequences of this are:

  1. Once a judge or social workers in any case become aware of an allegation of alienation, they must conduct an appropriate investigation and ensure that there is a prompt follow-up to the findings of the investigation. Adherence to recommendations, even extreme ones, must be monitored and policed.
  2. Where children have been separated from one or more parents, preparatory measures must be taken to facilitate reunification.

The paragraph 65 dictum points out to the reader a trap that can easily assail decision makers, advocates and professionals in this field namely the tendency to conflate the voice of the child with a child’s best interests.

The nuanced analysis of the Strasberg Court should encourage national courts to look deeper into high conflict access cases, in order to address conscious and unconscious tactics to alienate one parent from the children.[11] Conscious tactics are discussed above; shamefully, these are often instigated by a custodial parent’s legal team.

Unconscious behaviours may include the tone used when discussing the non-custodial parent in front of the child/children. A custodial parent’s body language surrounding access hand-overs visits can also send a message to a child that they should be nervous or anxious. Children can often, subconsciously, pick up on these cues and become nervous or anxious.

A brief note on quantum

While a full analysis of Article 41 of the European Convention of Human Rights is beyond the scope of this article, something should be said of the €12,000 award to NG. Article 41 states:

If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

In this case NG “suffered one of the most serious interferences with her family life”[12] and effectively lost contact with three of her biological children as a result of this interference. It would be a mistake to view the quantum of the ‘non-pecuniary damage’ – €12,000 in this case – as a measure by the Court of the value of NG’s ‘loss’.  It is by most measures a very small sum of money. It will also be remembered that her claim was for €50,000 – itself hardly an adequate measure of the ‘loss’.  As with all of these cases, it is more likely that for NG the case was about the establishment of the principle, the declaration of wrongdoing by the State of Moldova and the hope that the State will in future do better in the exercise of its duty for respect for family life.

Orders under Article 41 do not attempt to remedy all loss connected to the wrong suffered by successful Applicants,[13] but merely serve as an adjunct to declaration that a breach of human rights was perpetrated by a State. The naming and the shaming of the relevant state is intended to bring about a change whereby ‘respect for family life’ is given true effect and meaning.

Conclusion

We hope that, at the very least, cases with multiple proven signs of alienation will now get fast-tracked at every level in the courts of all EU member states.

This decision should resonate with courts dealing with difficult custody and access cases. It serves a cautionary tale about how a failure to detect and undo alienating behaviour early leads to irreparable damage to the parent-child relationship.

Furthermore, national courts should be cognisant of their contribution to alienation – via slow and lengthy procedures. Judges need to be watchful that, by failing to make meaningful and timely orders, they do not become unwitting accomplices in the alienation of children.

A future applicant might invoke Article 13, the right to an effective remedy, to condemn the lack of enforcement of a reverse custody or access order.[14] For now, this case is a welcome step in the right direction.

[1] Paragraph 64: “the national authorities’ obligation to take measures to facilitate a reunion is not absolute, since a reunion between a parent and a child who has lived with other persons for some time may not be able to take place immediately, and may require preparatory measures… What is therefore decisive is whether the domestic authorities have taken all necessary steps to facilitate contact that can reasonably be demanded in the special circumstances of each case.”

[2] Ignaccolo-Zenide v Romania (Application no. 31679/96) at paragraph 102:

“…the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. In the instant case this was all the more so as the applicant had brought an urgent application in the courts. The essence of such an application is to protect the individual against any damage that may result merely from the lapse of time.”

[3] Paragraph 66.

[4] Paragraph 76.

[5]Paragraph 79.

[6] Paragraph 79.

[7] Paragraphs 71 & 73.

[8] Paragraph 80. A slightly clearer explanation of what factors brought the Court down on the side of NG would have been more helpful to national courts in their implementation of this decision.

[9] Where there is a right there is a remedy.

[10] Domestic violence cases are generally heard within ten days of the issue of a summons, and are prioritised over all other  family law applications.

[11] For example, at paragraph 57 the Court noted that NG “had been blamed for not being sufficiently interested in rebuilding her relationship with her children, which was not true.” False accusations are often levelled at the alienated parent in order to distract from the key issues of access and the destructive behaviour of the custodial parent.

[12] Paragraph 85.

[13] See generally, Jason NE Varuhas, Damages and Human Rights (Bloomsbury 2016).

[14] In Pisică the lack of enforcement was only considered in the context of Article 8.

Part I

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