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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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CONTACT/ HUMAN RIGHTS: Mijuskovic v Montenegro (Application No 49337/07)
Date:25 OCT 2010

(European Court of Human Rights; 21 September 2010)

A divorced father refused to return young children following holiday contact. Social services ordered the father to return the children and attempted enforcement with police support.  The paternal grandparents physically prevented the enforcement. Warnings were issued by social services to the father, but he was not fined and no forcible transfer was attempted at this stage.  The father argued that the children did not want to return to their mother's care. The mother brought enforcement proceedings. The court eventually fined the father but when forcible enforcement was attempted, the children had been moved elsewhere.  At one stage the court granted custody to father on basis of informal discussion between the children and a psychiatrist. After almost four years, the children were finally transferred to their mother's care. In meantime the father had been found guilty of domestic violence towards the mother, but the conviction was overturned on basis that it was time barred. He had also been acquitted of child abduction. The mother alleged breaches of her human rights. The government argued that the mother had not exhausted effective domestic remedies.

Held, Convention only required exhaustion of remedies relating to breach alleged, which were available and sufficient. Breach of Art 8 made out in delay in enforcement. No explanation for delay in enforcing either social services' decision or court decision that children should be returned.

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