Hendriks v. Netherlands (5 E.H.R.R. 223) App. No. 8227/78, 10 December 1982
The applicant, a divorced father, complained about court decisions which had denied him access to his child because the mother's refusal to co-operate might harm the child. He alleged breach of Article 8. The applicant also alleged breach of Articles 3 and 6. By a majority the Commission found no violation, a conclusion which was confirmed by the Committee of Ministers.
1. Respect for family life. Access by divorced parent to child (Article 8). Justification for denying access. Protection of child's health (Article 8 (2)).
(a) The natural link between parent and child was of fundamental importance. When the actual 'family life' in the sense of 'living together' had ended, continued contact between them was desirable and should in principle have remained possible. Respect for family life implied that this contract was not to be denied unless there were strong reasons under Article 8(2) to justify such an interference. The denial of access thus involved an interference with the applicant's right under Article 8(1).
(b) The Commission considered but rejected the argument that the national legislation was as such in breach of Article 8. Although the legislation did not as such provide for the legal safeguards required by Article 8, the courts had clearly treated the applicant's claim for access to his child in a way which recognized his entitlement to such access but refused it in the interests of the child.
(c) The interference with the applicant's Article 8 right was 'in accordance with the law'. It sought the legitimate aim of protecting the health of the child.
(d) In examining whether the interference was 'necessary in a democratic society', the Commission did not intend to substitute its own judgment for that of the competent domestic courts.
(e) It was an important function of the law in a democratic society to provide safeguards in order to protect children, particularly those who were specially vulnerable because of their low age, as much as possible from harm and mental suffering resulting, for instance, from divorce of their parents. On the fact the Commission was satisfied that the refusal of access had been required by the child's interests.
(f) When there was a serious conflict between the interests of the child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail under Article 8(2).
2. Inhuman and degrading treatment (Article 3)
The Commission considered that the impugned court decisions could not be 'regarded as inhuman or degrading treatment.'
3. Civil proceedings. Reasonable time. Fair hearing: 'equality of arms' (Article 6(1)).
(a) The various domestic proceedings had taken respectively six, one and a half, and seven months.
(b) In order to keep the parents and children concerned no longer than necessary in uncertainty, proceedings relating to a parent's access to his child were not to be unduly prolonged. The decision required careful examination of the family situation and the chances of reaching a settlement had to be ascertained. In view of these considerations, the Commission did not find that the proceedings had been unreasonably long.
(c) The Commission left open whether the fact that an applicant for access could not retain a copy of the social report might prejudice his position before the courts, especially if he was not legally represented. On the facts, however, the applicant's lawyer had the report and the 'equality of arms' requirement in Article 6(1) had been respected.