Ferrari v Romania
| Judge | JUDGES CASADEVALL (PRESIDENT),LOPEZ GUERRA,SIKUTA,POPOVIC,PARDALOS,GRITCO,MOTOC |
| Judgment Date | 28 April 2015 |
Child abduction – Wrongful retention – Return order – Length of proceedings – Argentinean national marrying woman with Romanian and Argentinean nationality – Family being resident in Argentina – Father agreeing that mother could take child to Romania for short period – Mother failing to return child and filing for divorce and custody in Romania – Romanian courts granting but subsequently quashing return order – Return order being refused by appeal court – Father complaining about length of proceedings – Whether Romanian court erring in not giving sufficient reasons for non-return order – Whether Romanian court erring in allowing procedure to last 13 months – Whether father’s right to respect for family life effectively protected – Human Rights Act 1998, Sch 1, Pt I, art 8 – Hague Convention on the Civil Aspects of International Child Abduction 1980.
Private and family life – Child abduction – Wrongful retention – Return order – Length of proceedings – Argentinean national marrying woman with Romanian and Argentinean nationality – Family being resident in Argentina – Father agreeing that mother could take child to Romania for short period – Mother failing to return child and filing for divorce and custody in Romania – Romanian courts granting but subsequently quashing return order – Return order being refused by appeal court – Father complaining about length of proceedings – Whether Romanian court erring in not giving sufficient reasons for non-return order – Whether Romanian court erring in allowing procedure to last 13 months – Whether father’s right to respect for family life effectively protected – Human Rights Act 1998, Sch 1, Pt I, art 8 – Hague Convention on the Civil Aspects of International Child Abduction 1980.
The applicant, an Argentinean national, was a military pilot. On 11 August 2005, his child was born of his marriage with MTR, a woman who held both Romanian and Argentinean nationality. The family’s permanent residence was in Argentina, but they travelled due to the applicant’s various work assignments. In September 2006, the applicant was sent to a UN mission in Cyprus, where his family joined him shortly after. While in Cyprus, the family travelled to Spain to visit the applicant’s sister. In order to facilitate the travelling, the applicant and his wife signed an authorisation form allowing each one of them to travel abroad with the child. After having
lived together for seven months in Cyprus, the applicant and MTR decided together that MTR would take their child to Romania for a few months, and would join the applicant in Buenos Aires in October, at the end of his contract in Cyprus. The parents agreed that MTR and the child would return to Argentina before 15 October 2007, the date at which the child’s passport would expire. MTR was unable to make travel arrangements on time, as the applicant had been late in sending money for the tickets, and eventually the child’s passport expired. MTR sought the applicant’s consent to request a Romanian passport for the child, but the applicant refused. On 14 November 2007, MTR informed the applicant that she would not return with the child to Argentina. On 16 November, the applicant withdrew the authorisation that he had given to the wife to travel with the child. On 4 December, he also lodged a request for the return of the child, under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Hague Convention’), with the Argentinean Ministry of Foreign Relations (‘the Ministry’), the Central Authority for the purposes of the Hague Convention. On 3 February 2008, MTR filed for divorce and custody of the child before the Romanian courts. Having tried unsuccessfully to engage her in negotiations concerning the return of the child, on 30 March the Romanian Central Authority lodged before the Bucharest County Court an application under the Hague Convention for the return of the child. On 8 July, the county court granted the applicant’s request and ordered MTR to return the child to the habitual residence in Buenos Aires within two weeks from the date of its decision. On 12 August, MTR appealed in cassation. The case was heard on 27 November 2008 by the Bucharest Court of Appeal and, in a final decision of 4 December 2008, the court upheld the county court’s decision. On 22 December, the Ministry requested the assistance of a bailiff for the enforcement of the final decision. On 8 January 2009, the bailiff informed MTR of the obligation to comply with the court order. The next day MTR lodged an application for a stay of execution which was dismissed by the Bucharest County Court on 25 March 2009. A new enforcement attempt took place on 2 April 2009 when MTR informed the bailiff that she refused to comply with the return order. She explained that the applicant could keep contact with the child through internet and webcam, that she kept him updated with the developments of the child and that he did not support the child financially. On that day the bailiff decided to postpone the enforcement proceedings. At the same time, MTR requested the annulment of the final decision of 4 December 2008, which she considered to be ‘unfounded and unlawful’. On 23 February 2009, the Bucharest Court of Appeal granted her request, quashed the return order and sent the case back for re-examination of the appeal on points of law. The Court of Appeal retried the appeal and in a final decision of 4 May 2009 dismissed the initial request for the return of the child. The court considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the
child’s best interest to return to Argentina, because the applicant travelled often with his job and consequently could not take proper care of the child. The applicant complained to the European Court of Human Rights under arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) (‘the Convention’) about the length of the proceedings instituted through the Romanian Central Authority for the return of his child. He submitted that the proceedings had lasted too long and the delays had not been necessary, either during the court proceedings or at the enforcement stage. He contended that no substantive or effective steps had been taken for the enforcement of the return order. He further submitted that by allowing for such delays in the proceedings to occur, the authorities had made it possible for the mother to successfully plead a change in circumstances and thus to obtain annulment of the return order. In his view, the Romanian courts deciding on the request for return determined the substance of the custody matter rather than the procedural issue of which jurisdiction should deal with the custody matter; accordingly, the Romanian courts had misinterpreted the concept of child’s welfare in the context of the Hague Convention. The European Court of Human Rights considered that the applicant’s complaints were to be examined only under art 8.
Held – A harmonious interpretation of the European Convention and the Hague Convention could be achieved provided that the following two conditions were observed. First, the factors capable of constituting an exception to the child’s immediate return in application of the Hague Convention, particularly where they were raised by one of the parties to the proceedings, genuinely had to be taken into account by the requested court. That court then had to make a decision which was sufficiently reasoned on this point, in order to enable the European Court to verify that those questions had been effectively examined. Secondly, those factors had to be evaluated in the light of art 8 of the Convention. Article 8 imposed on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts had not only to consider arguable objections to the child’s return, but had also to make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements of art 8 of the Convention and also to the aim and purpose of the Hague Convention. There had to be due consideration of such allegations, demonstrated by reasoning of the domestic courts that was not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which had to be interpreted strictly. Furthermore, in matters pertaining to the reunification of children with their parents, the adequacy of a measure was also to be judged by the
swiftness of its implementation. Such cases required urgent handling, as the passage of time could have irremediable consequences for the relations between the children and the parent who did not live with them. The delays in the procedure alone might enable the European Court to conclude that the authorities had not complied with their positive obligations under the Convention. In the instant case, in not giving sufficient reasons for the non-return order, in allowing for the procedure to last for 13 months and in protracting the enforcement proceedings, the authorities had failed to facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant had not received effective protection of his right to respect for his family life. There had accordingly been a violation of art 8 of the Convention (see paras 47–49, 56, below); Iosub Caras v Romania[2006] 3 FCR 130, Neulinger v Switzerland[2011] 2 FCR 110, Shaw v Hungary (App No 6457/09) (26 July 2011...
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