right to maintain personal relations and contact with both parents and close relatives, except if
such relations harm the child.
In another case, a father staying in a custodial institution challenged the lawfulness of Tallinn
Lasnamäe City District Government in restricting his visiting rights in respect of his daughter.
In this case, the child had been separated from the family and was staying in a shelter. Court
proceedings were pending to restrict the petitioner’s right of custody in respect of his child. No
court proceedings had been initiated with regard to the issue of visiting rights. The petitioner
complained to the Chancellor that the local authority officials had not enabled him to meet with
his daughter during his stay in the custodial institution and had restricted their communication
by telephone.
As a result of the proceedings, the Chancellor concluded that Lasnamäe City District
Government had violated the right of the petitioner and his daughter to the inviolability of
family life, in particular the visiting rights under § 143(1) of the Family Law Act, when it
refused to create possibilities for communication between the petitioner and his daughter
without having recourse to the court for restricting the petitioner’s visiting rights in respect of
his daughter. In addition, the Chancellor found that Lasnamäe City District Government had
violated the petitioner’s right to the inviolability of family life, in particular as regards the right
of custody under § 116(2) of the Family Law Act, when it restricted the parents’ right of custody
without a court decision within a period of one year and failed to comply with the obligation
under § 135(4) of the Family Law Act to submit an application to the court for restricting the
rights of the parent in respect of the child immediately after the child’s separation from the
family.
The main issue in a complaint against Loksa Town Government was also concerned with the
lawfulness of the town government in separating a child from the family and organising the
communication between the parent in a custodial institution and the child.
Also in this case the local authority restricted communication between the parent in a custodial
institution and their child as it found that the communication was not in the best interests of the
child but had failed to have recourse to the court for restricting the visiting rights.
In this case, the Chancellor also concluded that Loksa Town Government had violated the
fundamental right of the petitioner and their daughter to the inviolability of family life,
specifically the visiting rights under § 143(1) of the Family Law Act, when it restricted for a
period of several months the communication between the petitioner and their daughter without
having a court authorisation. In addition, the Chancellor established that Loksa Town
Government had violated the principle of guaranteeing the fundamental rights and freedoms of
the petitioner as it had recourse to the court more than a month after the child’s separation from
the family, and not immediately as required under § 135(4) (second sentence) of the Family
Law Act.
In conclusion of the above cases, it could be noted that on several occasions local government
officials were not familiar with the provisions of the Family Law Act concerning visiting rights
or interpreted them erroneously. On several occasions the officials also failed to comply with
the requirement to have recourse to the court for restricting the parents’ right of custody
immediately after the child’s separation from the family.
52
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