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Schrader v Austria (15437/19) [2021] ECHR 808

Posted on 4 February 2022

Decision by the European Court on Human Rights ("ECHR") on whether inaction by domestic courts had caused a father to be alienated from his son and step-son, therefore breaching Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention").

The applicant was a German national, who was the biological father of L, born in 2007. L's mother had another child, T, with a different father in 2009. Even though the couple, who were unmarried, separated in 2010, the applicant shared the care of both L and T until 2013. From April 2013, the mother limited the applicant's contact with L, and completely prohibited his contact with T. In May 2013 he submitted a request to the Austrian courts for regular visiting rights regarding both L and T. Proceedings continued until October 2018, when the applicant's appeal was dismissed. His position before the ECHR was that the duration of the proceedings had been excessive and had led to his being alienated from both L and T.

The Austrian courts submitted that the duration of the proceedings were a consequence of the circumstances of the case, and could not be attributed to the domestic courts. They stated that they had "taken all reasonable measures to expedite the progress…and to prevent procedural delays". They further argued that the court had "not been inactive"

The ECHR found that the applicant's relationship with T amounted to private and family life within the meaning of Article 8 of the Convention; 'family life' was "not confined to marriage-based relationships and may encompass other de facto 'family' ties." Even though the case was somewhat complex, that was not sufficient to explain the total length of the proceedings – beginning on 7 May 2013 and ending on 25 October 2018. It further found that, despite the applicant's request to accelerate the proceedings, the case "progressed particularly slowly" with phases of inactivity, for which no satisfactory explanation was given by the Austrian Government. The ECHR also found that "the passing of time must have had a direct and adverse impact on…[the applicant's]…relationships with L and T" and this could "inevitably lead to estrangement".

Therefore, there had been a breach by the Austrian courts of Article 8 of the Convention due to the length of the proceedings.

The ECHR underlined the decisiveness of the duty to exercise exceptional diligence in cases concerning a person's relationship with his or her child – and found that that duty applied in this case, where one of the children was not the biological child. Domestic courts must be mindful, in cases of child arrangements, to not cause undue delays or risk sanctions.

Melissa Lesson says: The decision in Schrader v Austria (15437/19) [2021] ECHR 808, highlights, quite rightly, an issue faced by many parents (and especially fathers) when faced with protracted contact proceedings, at a time when contact with their child(ren) is being denied or severely curtailed by the other parent; the very serious impact the length of the proceedings and any inherent delays in those proceedings, can and will have on their relationship with their child(ren). In the case of Schrader v Austria, the proceedings took 5 years, for reasons that the Austrian Court could not readily explain. In the lifetime of a young child (the children in this case were aged 6 and 4 at the outset of the proceedings), five years without a meaningful relationship with their father can cause irreparable damage, and a lifelong estrangement. Whilst I would hope that 5 years is exceptional for children proceedings to be resolved in this jurisdiction, there is no doubt that the effects of the pandemic continue to be felt throughout the Court system, and the backlog of cases and consequent delays are having a profound effect; such delays now, may in the light of this case, be considered a breach of article 8 of the Convention for the Protection of Human Rights and the right to family life.

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