Does an imprisoned father have the right to see his child?

At the time of the decision, the father of a minor child was serving a five-year prison sentence for, among other things, violent acts against his child and the child’s mother as well as other women. The child also had to witness the father’s violence against the mother. The last contact between the father and the child was several years ago.

The father applied for the granting of a right of contact. The right of contact was to be exercised in the correctional institution.

The court of first instance dismissed the application in the best interests of the child. The appellate court confirmed the decision. The father finally turned to the Austrian Supreme Court (Oberster Gerichtshof, OGH). The Supreme Court rejected the father’s appeal.

The Supreme Court stated that the decision to what extent a parent should be granted the right of contact with his child or to what extent this should be restricted always depends on the circumstances of the individual case. This also applies in particular if the right of contact is to be exercised with the imprisoned parent in a correctional institution. The decisive factor is solely the best interests of the child. In the event of conflict, the interests of one parent must take second place to the best interests of the child. In the opinion of the Supreme Court, the fundamental right of Art 8 ECHR (right to respect for private and family life) cited by the father does not change this. The father applied for an accompanied right of contact and appealed against the decision of the lower courts that an accompanied visit with mouth and nose protection behind a plexiglass screen in the prison was contrary to the best interests of the child. In the opinion of the Supreme Court, the assessment (which was also shared by the child and youth welfare agency) that a visit with the described circumstances precludes a child-friendly form of contact is not unjustifiable. This was not least due to the young age of the child (born in 2014).

As a result, all instances were of the opinion that the father was not entitled to a right of contact under the given circumstances.

(Decision OGH 8 Ob 39/21z, 29.04.2021)

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