The ECtHR's interpretation of ‘democratic necessity’ when assessing Domestic Court interventions in cases of parental alienation and contact denial

Abstract

When cases of parental alienation and contact denial reach the European Court of Human Rights seeking a remedy for a violation of the applicants’ rights as protected by Art 8 of the European Convention of Human Rights, namely the right to respect for family life, the domestic authorities frequently attempt to justify their interference with this right by invoking the democratic necessity of the impugned measure. This study analyses the principles applied by the European Court of Human Rights in these cases, in its interpretation of ‘necessary in a democratic society’. The margin of appreciation accorded to national authorities in cases where a child and parent are being denied the right to mutual enjoyment of each other’s company – which constitutes a fundamental element of family life – is narrow, and decisions taken by the authorities in these cases are subject to a higher intensity of review. Particular diligence should be applied by national authorities when interpreting an alienated child’s expressed wishes, as these could be a reflection of the alienating parent’s voice. Cases of parental alienation and contact denial should be dealt with swiftly by courts if damage to the parent-child bond is to be mitigated, with as little procedural delay as possible and a decisive enforcement of court orders. Transfer of the alienated child’s residence to the targeted parent offers the best outcomes in severe cases of parental alienation, and waiting for the situation to resolve spontaneously is never successful. A number of reforms for Malta’s Family Court are recommended, which do not require the time-consuming implementation of new laws but rather the better application of existing provisions with minor amendments. The approach proposed incorporates principles of judicial continuity, organised case management and a focused case strategy which, if applied, would contribute to a reduction in unnecessary delays and thus bring Malta in line with its obligations under Art 8.