833
10.11.2009

Press release issued by the Registrar

EXERCISE OF PARENTAL RIGHTS BY FORMER SPOUSES: FINDINGS OF NO VIOLATION AND INADMISSIBILITY

Chamber judgment
 (application no. 1188/05)
No violation of Article 8 (right to respect for private and family life)
of the European Convention on Human Rights

Decision on admissibility
 (application no. 34175/05)
Inadmissible 

(The judgment is available only in French)

Principal facts

In the first case, the applicant, R.R., is a Romanian national who was born in 1972 and lives in Bucharest. In the second case, the first applicant, D.J., is the former spouse of R.R.; she is a Romanian national who was born in 1974 and lives in Cluj-Napoca. She lodged the application in her own name and on behalf of the second applicant, her daughter A.-K.R. (whose father is R.R.), also a Romanian national; she was born in 1996 and lives in Cluj-Napoca.

Following the divorce of R.R and D.J. in 2000, custody of their daughter, then aged four, was awarded to the mother. Several sets of judicial proceedings ensued, concerning in particular the father’s access rights in respect of his daughter, which were finally fixed on 10 November 2005 at three weeks per year during the summer holidays. Those rights were to be exercised in a context where his former wife regularly took their daughter to stay for long periods in the United States, where she had remarried. The father made numerous requests to the Romanian administrative and judicial authorities to obtain an acknowledgment of the wrongful nature of his daughter’s repeated removal and to secure her return to Romania. He relied in particular on the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”). Apart from two decisions by the Romanian courts on 5 May 2005 (declaring wrongful the child’s removal and her non-return to Romania) and on 9 August 2006 (prohibiting mother and child from leaving Romania, where they were staying for the summer) – decisions which had legal effects for only a few weeks –, the constant position of the Romanian administrative and judicial authorities in response to the father’s requests was that, since he did not have custody of the child, he was not justified in seeking her return. The removal of a child is wrongful under the Hague Convention only where it is in breach of custody rights. The father was, however, entitled to seek the protection of his access rights, and he did so, obtaining the Romanian authorities’ assistance where necessary (for example when, in the summer of 2008, mother and daughter did not spontaneously return to Romania to allow the father to exercise his access rights). In 2005 the father brought proceedings to obtain custody. In March 2008 custody was awarded to him in a decision that has not yet become final. The proceedings are still pending.

Complaints, procedure and composition of the Court

In the case of R.R. v. Romania (no. 1) the father, relying on Article 8 (right to respect for private and family life), complained that the measures taken by the Romanian authorities to protect his parental rights had been inadequate. The application was lodged with the European Court of Human Rights on 7 January 2005.

In the case of D.J. and A.-K.R. v. Romania the mother complained that there had been a number of violations of Article 6 § 1 (right to a fair hearing) in the proceedings in question. She took the view that the decisions by the Romanian courts on 5 May 2005 (declaring wrongful the removal of the child and her non-return to Romania) and on 9 August 2006 (prohibiting mother and child from leaving Romania) had breached her right and that of her daughter to freedom of movement, as guaranteed by Article 2 of Protocol No. 4, and/or their right to respect for private and family life under Article 8. The application was lodged with the European Court of Human Rights on 19 September 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

The Court’s decision

Case of R.R. v. Romania (no. 1)

The Court noted that the authorities, throughout the proceedings, had maintained their position that the only right of which the father was entitled to seek protection under the Hague Convention was his right of access (and not any right to the child’s permanent return). The Romanian courts had validated that position after adversarial proceedings and there was nothing to suggest that their conclusions were arbitrary or contrary to the provisions of the domestic or international law that they applied. The Court also observed that every time the child had been removed to the United States, the father’s complaints under the Hague Convention had been dealt with sufficiently promptly, in view of the particular circumstances of the case, without any inaction being attributable to the Romanian courts.

The Court took the view that after the father’s access rights had been finally fixed at three weeks in the summer, Article 8 of the Convention, construed in the light of the Hague Convention, obliged the Romanian authorities to adopt measures mainly to secure the child’s return for the three weeks during which the father was to exercise his annual right of access. This is in fact what happened when the father sought protection of his access rights in the summer of 2008, under the Hague Convention; he was successful and the measure was prompt.

In conclusion, the Court found that the Romanian authorities had made reasonably appropriate and sufficient efforts to protect the exercise of the parental rights that had been granted to the father and they had therefore not disregarded his right to respect for his family life. The Court held, unanimously, that there had been no violation of Article 8.

Case of D.J. and A.-K.R. v. Romania 

The Court held, unanimously, that all the mother’s complaints did not fulfil the conditions of admissibility and it thus rejected them without examining them on the merits.

Right to a fair hearing

Two complaints by the mother were declared manifestly ill-founded and therefore inadmissible. The first, to the effect that a law had been applied retrospectively, was rejected because in the Court’s view that had not been the case, and even if there had been retrospective application, the principles enshrined in the new law had already constituted, prior to its enactment, the essence of the domestic and international rules applicable in the present case. The mother’s second complaint, that the judicial decision had not been delivered in public, was rejected because, firstly, it was not established that this had been the case, and secondly, having regard to Article 6 § 1, the filing of a judgment in a court’s registry did not afford less guarantees than delivery at a public hearing.

A further complaint, concerning the father’s alleged lack of standing to bring proceedings, was rejected, because it had not been submitted previously to the domestic courts, as required by Article 35 § 1.

Lastly, the mother could no longer claim to be a victim of an infringement of Article 6 § 1 on the ground that a judgment had been given in the absence of the parties, as the judgment in question had been annulled.

Freedom of movement

Neither could the mother claim to be a victim of a violation of the right to freedom of movement on account of the decisions of 5 May 2005 and 1 September 2006. The first of those decisions, which had declared wrongful the child’s removal and non-return to Romania, only remained in effect for a few days as the mother then returned of her own accord to Romania. As to the second decision, prohibiting mother and daughter from leaving Romania after their stay there in the summer, it was annulled after a few weeks by a decision that acknowledged – and provided appropriate redress for – the violation of their right to freedom of movement.

Right to family life

The complaint to the effect that the above-mentioned decision of 5 May 2005 had violated the child’s right to respect for her family life in the United States was also declared manifestly ill-founded. The Court observed that, apart from the fact that mother and daughter had returned to Romania of their own accord after that decision, the Romanian courts in the Hague Convention proceedings had carried out an in-depth analysis of the child’s family life as a whole.

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This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ().