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CONTACT/HUMAN RIGHTS: Cardenas v Norway

Sep 29, 2018, 17:34 PM
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Date : Oct 11, 2007, 05:12 AM
Article ID : 88387

(European Court of Human Rights; 4 October 2007)

Following the parents' separation the mother prevented contact between the father and the two children and reported the father to the police for alleged sexual abuse of the elder child, then almost 3 years old. After the police had discontinued their investigation without pressing charges, the father issued contact proceedings. The court granted him contact with both children every other weekend and for part of the holiday period, rejecting the mother's allegations, which the court found had been fabricated as part of a strategy to obstruct contact. The appeal court quashed that decision, stating that given the quite detailed descriptions of abuse, together with the elder child's strong objections to seeing the father, there were many elements that 'may indicate that abuse has occurred'. The appeal court further stated that it was not necessary to go into or take a stance on the issue of abuse, deciding the question of contact on the basis of the child's opposition to contact, and the disruption to the children and mother if contact were ordered. The appeal court concluded that an order for no further direct contact was the option most favourable to the children's development and was justified by the children's best interest. The father was refused further opportunity to appeal. The father complained of a breach of his human rights, in particular his right to respect for his private and family life, claiming that the statements made by the appeal court concerning the abuse allegations had amounted to an affirmation of suspicion that he had abused the child. He claimed that, having been labelled a sexual abuser, he was suffering from anxiety and depression.

It was not apparent why the appeal court had mentioned that abuse might have occurred. It appeared that, without it serving any purpose for its resolution of the case, the appeal court had taken judicial notice of the evidence before it and had affirmed on the basis of this a suspicion of its own that the father had committed a serious crime, sexual abuse of one of his children. No cogent reasons had come to light as to why the appeal court had in part dealt with, and in part omitted to deal with, the issue of sexual abuse. The national court should either have disposed of the issue, with all that meant in terms of evidentiary assessment and reasoning, or have left it on the side. The court's portrayal of the fathers conduct in an authoritative judicial ruling was likely to carry great significance by the way it stigmatised him, and was capable of having a major impact on his personal situation as well as his honour and reputation. The interference with the father's right to respect for his private and family life occasioned by the relevant passage was not sufficiently justified in the circumstances, and was disproportionate to the legitimate aims pursued. The father was awarded damages for non-pecuniary loss of 7,000 euros.

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