Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

FOREIGN LEGAL MODELS AND COURT-BASED PROGRAMS (cont'd)

Europe

All Council of Europe (European) countries are parties to the UN Convention on the Rights of the Child. In some European states, access is considered a right of the parent, while in others it is treated also or solely as a right of the child. Most countries extend to parents a right of access in so far as it is in the child's interest (Council of Europe, 1999: 10).(232)

The English Court of Appeal, in Re M, while reiterating that there is a presumption in favour of maintaining access with a parent, also stated that each case must be decided on its own facts and that courts should ask in each case whether the emotional need of a child to have an enduring relationship with both parents is outweighed by the risk of suffering if access were ordered.(233)Some commentators interpreted Re M to mean that a parent seeking access now has the burden of proving that the access would be in the best interests of the child. In contrast, most researchers continue to find that courts apply a strong presumption in favour of access despite an increasing consensus among researchers that such a presumption undermines the best interests of the child (Smart & Neale, 2000: 168; Cantwell et al., 1999).

Domestic violence was historically considered to be a private family problem in England and Wales (Hester & Radford, 1996). Recently the issue has been given more attention and amendments have been made to the Children Act 1989 by the Family Law Act 1996 to address domestic violence. There continue to be concerns, however, that courts, lawyers and other professionals do not properly investigate whether there has been domestic violence (England and Wales, 2000; Barnett, 1999). Domestic violence is not a bar to contact (access). Wall J. has said that "domestic violence can only be one factor in a very complex equation. There will be contact cases in which it is decisive against contact. There will be others in which it is peripheral."(234)

Many European countries use mediation or counselling to resolve access disputes initially and for ongoing problems, and its use is growing. Mediation or counselling is almost always voluntary (Council of Europe, 1999: 14).

In Europe, the remedies for access denial are varied. In almost every European country, apprehension of a child to enforce an access order is impossible when the child is sufficiently mature and genuinely opposes access, but in Bulgaria apprehension may be ordered when the child has received psychological counselling and remains opposed (Council of Europe, 1999: 13). Forced apprehension of the child after counselling is also available in Italy and Sweden. Criminal penalties may be imposed against the custodial parent in Belgium, Italy (imprisonment for up to three years), Norway (a fine, but not when the child opposes access), Sweden (a fine) and the U.K. (imprisonment if it is in the child's interest). Applications to vary custody or to vary or eliminate access may be made, usually with the requirement that a change in circumstances be proven and that the order sought serve the interests of the child (Austria, Belgium, Bulgaria, Czech Republic, Denmark, France, Luxembourg, Malta, Moldova, Poland, Switzerland and the U.K.). Mediation may be ordered in Poland (Council of Europe, 1999: 33-39).

In England and Wales, imprisonment for contempt has generally been considered a remedy of last resort, and "in family cases they should be the very last resort."(235) Most courts consider that imprisonment threatens the interests of the child.(236) In a discussion of sanctions for contact denial, one author wrote that "attachment of a penal notice to a contact order... or proceeding towards committal, will rarely--if ever--be in the interests of the child" ("Enforcement in Children Act Proceedings," 1995: 227). Nevertheless, imprisonment is ordered in some cases. A custodial mother who was "implacably hostile" to contact was imprisoned for six weeks for repeated contempt of a contact order, and the Court of Appeal stated that the welfare of the child, while a material factor, was not the paramount consideration when considering whether to commit a parent for "flagrant breach" of a contact order.(237) More recently, the Court of Appeal set aside an order to imprison a mother for contempt of a contact order because the father did not wish for an order of imprisonment and the lower court had instigated committal proceedings on its own initiative.(238) In his discussion of this case, in which he acted for the mother, Sharpe commented as follows:

[I]n difficult contact cases, the courts should be astute, perhaps more astute than some have been in the past, to make detailed inquiries into the reasons for the breakdown in contact. If a mother is perceived to be hostile, searching inquiries must be made to discover the reasons behind it. If contact is to succeed, it can only do so properly if the mother supports it. If domestic violence is alleged, it must be investigated so that the court is able to make findings and weigh its impact on the decision-making process. The mother's mental and emotional state must be carefully evaluated, almost always with help (Sharpe, 1999: 409).

There is no sanction for failure to exercise access in many European countries, including Austria, Germany, Greece, Hungary (even though Hungary has enacted a statutory duty to exercise access), Liechtenstein, Luxembourg, Moldova, Slovenia, and Sweden. Failure to exercise access may result in a withdrawal of access or of parental authority in Belgium (in extreme cases only), Denmark (if there has been no contact for five years), France, Italy, Norway, Poland and Switzerland. Pecuniary compensation for the custodial parent may be ordered in Belgium. Counselling or mediation may be used on a voluntary basis in Cyprus and Finland. Children may seek a court order for the parent to exercise access in the Netherlands and in the U.K. (Council of Europe, 1999: 33-39).

Most European countries are parties to the Hague Convention on the Civil Aspects of International Child Abduction. The English Court of Appeal has ruled that a non-removal order, agreement or law gives rise to "rights of custody," and that a custodial parent who removes or retains a child in violation of such an order, agreement or law may be ordered to return the child home.(239) French and Israeli courts have adopted the same view (Silberman, 1994).


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