You should examine the questions below to evaluate whether your parental access rights have been restricted lawfully and whether your right to family life has been sufficiently respected. If the answer to any of these questions is negative in your situation, your right to family life may have been violated. In such case, you have the right to complain. Read more about how to complain.
Any restrictions on parental access rights must be allowed by law. The Family Code states, that a civil court may restrict or terminate your access rights, if the child is endangered as a result of parental access and it is only possible to sufficiently protect his/her interests by restriction or termination of parental access rights.
Your right to family life has been violated where the restriction of access rights is not allowed by law. There is then no need to examine the other questions.
The restriction of access to your child has to be aimed at the protection of a legitimate interest. The only legitimate interest for restriction of parental access to child is the protection of the child’s best interest.
If there is no legitimate aim to the restriction of access rights, it will not be lawful and your right to family life has been violated. There is no need to examine the necessity and the proportionality of the restriction.
The restriction of access rights must be necessary and suitable for the protection of other legitimate interests.
The following questions should be asked to evaluate whether there really was such necessity:
a) Would the parent’s access to a child threaten the child’s interests?
It is lawful to restrict parental access rights, if contact with the child would threaten the latter’s life, health or development.
example Parental access rights can be restricted if that parent has previously been violent towards the child.
b) Are there other alternative and less restrictive methods available to achieve the legitimate aim?
Even if your parental access rights have been restricted, there may be other less restrictive measures to protect the legitimate interests of the child, at the same time as preserving your time spent together with your child. This may be achieved by introducing certain restrictive conditions such as a special meeting place or supervision by other persons or institutions.
Similarly, if you are fully deprived of access rights, the possibility of protecting your legitimate interests without fully depriving you of access to your child should be evaluated. However, there may be situations requiring total deprivation of parental access as the only measure to protect the significant interests of the child, such as his/her life or health.
a) What is in the child’s best interests?
The state authorities must take into account the age, maturity and wishes of the child to identify the child’s best interests in a particular case. It is in the child’s best interests that his/her ties with the members of his/her family are maintained except in cases where it would harm the child’s health and development. Read more about the principle of the child’s best interests.
example The child’s opinion will not be decisive where he/she would be likely to suffer from violence from the parent in question. In such a case, it should be objectively assessed, whether it is in the child’s best interests to ensure his/her development in a safe and secure environment, to avoid meeting the parent.
The child’s age, mental and physical state plays a particular role in the decision-making procedure. The younger the child, the stronger the possibility that after the restriction or deprivation of parental access rights, when the child is placed in the care of the other parent or even foster parents, that he/she will establish a close relationship with them and it may then be in the child’s best interests not to interrupt the new relations. In other words, restrictions placed on the right to contact the child that may lead to alienation from the parent whose parental access has been restricted with much more limited possibilities of reuniting and renewing the parent-child relationship.
example Restrictions on parental access to a baby or toddler will have a more severe effect on the possibility of maintaining a family relationship than in the case of an older child or teenager who has already developed an emotional bond with the parent.
Other aspects should be taken into account as well, for example, a restriction on parental access rights which excludes the child from further contact with his/her siblings with whom he/she has a close relationship, may not be in the child’s best interests.
b) What are the parent’s characteristics and conduct towards the child and the other parent?
- Does the parent suffer from a disease or an addiction which may endanger the child?
- Has the parent neglected the child, or been abusive and/or violent towards the child or other family members?
- If the parent has these problems, was he/she motivated to accept treatment and/or assistance from the authorities before the restriction of parental access rights?
- Has the parent been motivated and cooperative towards the authorities in finding the best solution for the situation before parental access was restricted?
c) Has the parent been treated differently on the basis of certain aspects related to his/her personality?
If the mere fact of the parent’s personality, for example, their belonging to a certain religion, is the decisive factor for the restrictions on the access to their child, this may violate the prohibition on discrimination and unequal treatment. However, there will be no violation if the authority has carefully examined all the evidence, and thus concluded that the influence of certain personal aspects may threaten the child’s best interests.
example The prohibition on discrimination and unequal treatment will most likely be violated if parental access has been restricted or totally denied solely on the basis of your sexual orientation, religion or age.
d) If you have other children in the custody of the other parent or taken into public care, are you allowed to contact them?
If your other children are in the custody of the other parent or taken into public care for similar reasons, but you are nevertheless allowed to contact some of them, it may constitute unequal treatment with regard to the child in question. In such a case, the state authorities will need sufficient reasons for such a difference in attitude, otherwise it may violate the prohibition on unequal treatment and the right to family life.
e) Was the decision-making procedure fair?
Was the parent involved in the decision-making procedure?
The involvement of the parent ensures that the decision is not one-sided and arbitrary. The parent has a right:
- to be heard and present arguments against restrictions on the exercise of parental access
- to be fully informed about the situation and have access to all the relevant evidence which the authorities have collected
The situation and its consequences should be explained to a parent who suffers from mental disease or intellectual disabilities in a manner that he/she understands. This may also include providing legal assistance and advice and guidance in seeking it.
If the parent has no opportunity to be involved and heard in the decision-making procedure, it may lead to a violation of the parent’s right to family life. However, participation of the parent in the decision-making process is not needed in exceptional situations, such as:
- where the parent cannot be found
- the parent’s physical or mental condition is such that he/she cannot understand the situation
- in other circumstances where it would be impossible or excessively difficult
Have the authorities examined the entire family situation thoroughly?
A thorough examination means that the authorities have assessed all factors and evidence of a factual, emotional, psychological, material and medical nature, and found a balanced and reasonable solution for the protection of both the child’s and the parent’s interests.