Non-Convention Issues
The mother complained that the Turkish authorities had failed effectively to enforce her access rights to her children despite numerous attempts she had made to see them between 1992 and 1998. She had travelled to Turkey from Iceland more than 100 times in six years with the aim of seeing her daughters. However, her efforts had remained unsuccessful because her former husband had consistently refused to comply with the access arrangements. She pointed out that the Turkish authorities had failed to take effective steps to locate her daughters, who had been hidden by their father prior to each visit by the enforcement officers. The mother maintained that 18 sets of criminal proceedings had been instituted against her former husband on account of his failure to comply with the court orders. However, he had been let off lightly, only having to pay small fines and escaping more severe punishment. The Court noted it had repeatedly held that art 8 includes a right for parents to have measures taken that will permit them to be reunited with their children and an obligation on the national authorities to take such action. However, the national authorities’ obligation to take measures to facilitate reunion was not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such co-operation, 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 art 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them. The Court noted that the authorities did not take any measures to enable the mother to enjoy access while the lengthy proceedings were pending. In particular, they failed to seek the advice of social services or the assistance of psychologists or child psychiatrists in order to facilitate the applicant’s reunion with her daughters and to create a more cooperative atmosphere between the applicant and her former husband. Although there were occasions when the children had firmly refused to see their mother the court was of the opinion that the children were never given any real opportunity to develop a relationship with her in a calm environment so that they could freely express their feelings for her without any outside pressure. The Court held that while measures against children obliging them to re-unite with one or other parent were not desirable in this sensitive area, such action must not be ruled out in the event of non-compliance or unlawful behaviour by the parent with whom the children live. The Court held that the fines imposed on the applicant’s former husband were neither effective nor adequate. It concluded therefore that the Turkish authorities failed to make adequate and effective efforts to enforce the mother’s access rights to her children and thereby violated her right to respect for her family life, as guaranteed by art 8. However the court ruled that there was no basis on which to find that the mother was subjected to discrimination on the ground of her religion or nationality. Under the terms of Article 41 the Court awarded the mother the sum of 65000 euros in damages. The mother was also awarded costs.
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