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THIRD SECTION
(Application no. 13589/07)
JUDGMENT
STRASBOURG
10 January 2012
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Cristescu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Mihai Poalelungi, ad hoc
judge,
Kristina Pardalos, judges,
and
Santiago Quesada, Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
2. The applicant was represented by Ms M.-N. Olteanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that the national authorities had failed to ensure the enforcement of a judicial decision granting him rights of contact in respect of Th.N., his minor son.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
During the proceedings, two environment studies were conducted at the applicant’s home and at I.R.’s home respectively. The studies concluded that the children were well taken care of and that their development was in accordance with their age. It was noted that the elder child, C.I., had started living with the applicant on 24 September 2001, and that their relationship was based on good communication. The applicant expressed his wish that C.I. be placed with him, in the light of their close relationship.
The court did not interview the two children, given their young age.
In delivering its judgment, the court took into consideration the evidence adduced, including the two studies; it held that the mother had proved to have spent more time with the two children, but it also underlined that it was in the two children’s best interests to be placed with their mother, particularly in view of their age.
On 21 May 2002 the Bucharest County Court modified the first-instance
court’s judgment concerning the custody of C.I., which was
awarded to the applicant, in view also of the child’s own
choice in the matter. The
first-instance court’s reasoning
concerning Th.N. was upheld without being reassessed, seeing that
none of the parties contested that part of the judgment. The court’s
reasoning observed that:
“In the present case, it is beyond any doubt that both parents provide for their children a very good environment for their development, both financially, and also morally.
The fact that during the marriage it was the mother who dedicated more time to the children was because she had more free time available, and also because traditionally, in any family, it is the mother who predominantly takes care of the children, especially during the first years of their lives.
It follows that the father cannot be regarded as not having shown interest in the upbringing and education of the children.”
“The behaviour of the two brothers reveals a strongly affectionate relationship, and their break-up was followed by the psychological breakdown of C.I. (...); their separation has been very traumatising for both children”.
In another report written by E.I.V, it was noted that Th.N. had suffered as a result of the conflict-ridden relationship of his parents, and that:
“The state of conflict that marked the parents’ divorce evidently affected the child. The younger child is stable at present, even though he intensely resents the absence of his older brother.
The rare contact he had with his father following the latter’s separation from his mother evidently perturbed the psychological state of the younger child, owing to the father’s attempts to inculcate in him a hostile attitude towards the mother and to undermine his trust and his affection for her”.
The applicant for his part submitted a copy of a psychological report of 11 September 2002, as well as a medical certificate issued on 16 September 2002 concerning C.I., stating that: the boy was normally developed, presented a level of maturity appropriate for his age and did not have adjustment difficulties as a result of his parents’ separation; the sadness he had shown a few minutes after seeing his little brother proved only that he had reactions which were normal in the case of two separated brothers; and that C.I. had expressed his wish to stay with his father, even though he loved his brother and his mother.
In its final judgment of 21 April 2003 the Bucharest County Court held that the applicant was entitled to take Th.N. from I.R.’s home according to the visiting schedule which had been previously accepted by the courts.
B. Enforcement proceedings
On 9 July 2002, the bailiff requested information from the competent authorities regarding I.R.’s current residence.
A further summons was issued on 23 August 2002; the record drawn up on 4 October 2002 in the presence of the bailiff, the applicant and a policeman stated that no one had allowed them to enter the premises, even though noises and a human voice could be heard inside the house.
The official report drawn up on 30 May 2003 noted I.R.’s assertions, according to which it was not she who had opposed the applicant seeing Th.N., but, rather, it was the child who had refused any contact with his father. In order for the father-child relationship to reach a normal level, I.R. further asserted that she would make efforts to encourage the child to grow closer to his father. The parties agreed to allow the two children to meet in a public place, firstly on 1 June 2003, between 6 p.m. and 9 p.m., and then also on the following weekends, Saturday and Sunday, between 5 p.m. and 7 p.m., after which the parents would agree upon the new schedule for mutual visits, so that the children would spend the weekends together, with each parent alternately.
On 14 July 2003 the Bucharest County Court dismissed I.R.’s objection, holding that the annulment of the report drawn up by the bailiff was not justified, in so far as the reasons relied on concerned the merits of the dispute over contact rights.
The judgment became final, as it was not appealed against by any of the parties.
On 30 April 2004 another report was drawn up by the bailiff, noting Th.N.’s refusal to join his father and go to his home.
With respect to the alleged incidents, I.R. also lodged a criminal complaint against the applicant, accusing him of having endangered Th.N. s physical integrity (see also paragraph 30 below).
On 20 September 2005 the Bucharest (First District) Court of First Instance dismissed I.R.’s complaint, holding that in an objection to enforcement proceedings, the parties were not allowed to submit arguments concerning the merits of the enforceable judgment. Moreover, the court held that I.R. had not proven in any way her accusations against the applicant.
On 12 April 2006 the Bucharest County Court dismissed the appeal. In its final judgment, the court held that:
“Indeed, medical documents were contained in the file, proving that during a specific period of time, the minor did have in his body certain toxic substances; however, no fault or negligence can be imputed to the father in this regard; therefore, no impediment exists to the enforcement of his contact rights.”
On 20 January 2006 the applicant and the bailiff went to that address, where they learnt that the house had been sold to third parties in June 2005.
On 23 January 2006 the bailiff requested updated information from the competent authorities regarding the current residence of I.R.; however, in the meantime, on 19 January 2006 I.R. had sent a letter to the bailiff, notifying him and the applicant of her new residence. She had also informed the bailiff that the proceedings seeking to suspend the enforcement of the judgment of 2002 granting the applicant contact rights were still pending (see paragraphs 31-38 below), and thus asked the bailiff to avoid any type of harassment of Th.N. until those proceedings had come to a conclusion.
23. On 30 November 2006 I.R. officially notified the applicant that he could come and visit Th.N. In his reply sent on 15 December 2006, also through the bailiff’s office, the applicant expressed his contentment that after so much time, I.R. had finally understood that her persistent attempts to obstruct his rights of contact were harmful for the children.
24. The applicant further submitted that his endeavours to obtain information about his child’s performance at school had been unsuccessful. He alleged that the management of the private school attended by Th. N. had consistently denied him the right to visit his child at school, in view of the content of the judgment of 2002, which had allowed him contact rights that could only be exercised according to the schedule specified therein.
25. The applicant complained to the Prime Minister about the alleged infringement of his parental rights by the school on 11 March 2004 (the complaints being subsequently remitted to the prosecutor’s office for further investigation) and to the School Inspectorate on 7 April 2004. The applicant has not provided any further details in this regard.
C. Criminal complaints lodged by the parties
1. Lodged by the applicant
26. The applicant lodged a criminal complaint against I.R., accusing her of having not complied with the provisions of a final enforceable judgment. On 10 September 2003 the applicant was informed that on 27 May 2003 the prosecutor had decided to close the investigation, in so far as the impugned acts did not attract criminal liability, and had imposed on I.R. an administrative fine of 5,000,000 Romanian lei ((ROL) – approximately 130 euros (EUR)).
27. On 16 September 2003 the applicant lodged a second criminal complaint, with similar claims. Several persons were questioned, the prosecutor finally deciding on 30 June 2004 not to pursue the criminal investigation, since it appeared from the case file that it was not the mother’s fault, but, rather, the child’s unwillingness to see his father that had obstructed the enforcement of the disputed judgment.
28. On 3 December 2003 the applicant lodged another similar complaint. The prosecutor decided on 17 March 2004 not to indict I.R., considering that the adduced evidence proved that Th.N. had not wanted to see his father, as he had been traumatised by his parents’ separation. That decision was upheld by the chief prosecutor on 30 June 2004.
29. On 13 June 2004 the applicant lodged another criminal complaint, accusing the mother of endangering Th.N.’s moral and physical development, and of having slanderously accused him when alleging that he had given drugs to Th.N. while the child was visiting him over two weekends (see paragraph 30 below).
On 24 October 2005 the applicant lodged another criminal complaint against I.R., again accusing her of not allowing him to see his child, Th.N., thereby flouting the final judgment of 2002 which allowed him contact rights. The applicant also complained that, following the instructions given by I.R., the headmistress of the school attended by Th.N. had not allowed the applicant to enter the premises, and had refused to speak to him about his son’s activities at school, advising him to contact the school only in writing.
In her statement given before the prosecutor on 24 November 2006 I.R. declared that the reason why the applicant could not see Th.N. was because the latter did not wish to have contact with his father, and whenever he was informed that he was supposed to go see his father, “he panicked and was affected”. She also expressed her willingness to communicate with the applicant, so as to prevent any misunderstandings, which hurt both children.
The two above-mentioned criminal complaints were joined on 26 March 2009; a decision not to indict I.R. was given on 31 March 2009, the prosecutor holding that the adduced evidence revealed that I.R. had always shown good faith, initiating steps meant to facilitate contact between the applicant and Th.N., but that the latter had refused to meet his father because he felt threatened by him whilst in his presence.
The prosecutor also dismissed the complaints regarding the alleged slanderous accusation, considering that I.R. had not intended to defame the applicant, her acts being motivated solely by her wish to protect the best interests of her child Th.N., who at the time was found to have had toxic substances in his body, according to the medical examinations undergone by the child (see paragraph 30 below).
2. Lodged by I.R.
On 20 June 2004, when she had picked up the child from his father, with whom Th.N. had spent the weekend, the child was again in a state of tiredness. The medical examination conducted that evening had shown no signs of benzodiazepine; however, an examination carried out the following morning had found nicotine in the child’s blood.
The investigating authorities required an expert report to be prepared by the Institute of Forensic Medicine. On 24 August 2004 I.R. went to the Institute and declared that she refused to allow Th.N. to be examined. The report was drawn up based on the existing medical documents, noting that the source and the context of both intoxications could not be established. As the minor had not been examined, no conclusion on any potential violent acts against him or on potential traces of medical treatment could be formulated.
The decision not to indict the applicant delivered by the prosecutor on 15 February 2006 was based on the fact that the adduced evidence had not revealed beyond doubt signs of serious negligence or omission imputable to the applicant in the exercise of his parental rights with respect to the incidents of June 2004.
I.R. contested that decision before the courts. Her request was dismissed as out of time on 8 February 2007 by the Bucharest (Second District) Court of First Instance.
D. Civil actions lodged by I.R. for redefinition of parental rights
1. Proceedings lodged in 2002
“The mother is preoccupied with raising and educating Th.N.; the two have a good relationship, based on affection and communication. In the mother’s opinion, the father should be allowed to visit Th.N. at her home and in her presence, for fear that by leaving the child at the father’s house, he might have a bad influence on the child.
The mother declared that she had attempted to have personal contact with the minor C.I., but had been obstructed by the father, who had not allowed her to enter his home and who had created a bad image of her in the child’s mind.”
While acknowledging that C.I. enjoyed “optimal living conditions” at his father’s house, the social worker also noted that the two had a harmonious relationship, based on affection and mutual understanding. The applicant had declared that he wished that he could have a closer relationship with his other child, Th.N., but on account of the mother’s attitude, such a goal had become unattainable. C.I. had expressed his wish to spend more time with his brother, whom he truly loved.
The social worker also noted that the headmaster of the kindergarten attended by Th.N. had informed him that the applicant was interested in his son’s activities and that “he was sometimes allowed to talk to the child, but only in the presence of another person”.
The report’s conclusion pointed to the fact that the two brothers had a very warm relationship, and also that both parents showed an affectionate and caring attitude towards the two children, both expressing their full receptiveness to developing a closer relationship with the child who lived with the other parent.
I.R.’s request for a psychological report assessing Th.N. was dismissed by the court on 6 March 2003 as unnecessary.
“The minor (Th.N.) is an intelligent child, who tries to understand the situation, but the fear of being separated from his mother, as happened with his brother, causes new states of anxiety, crying fits, nightmares and nocturnal enuresis [bed-wetting].
His current state is also provoked by his father’s unscheduled visits, the child feeling threatened by a possible kidnapping, bearing in mind his brother’s experience. His relationship with his father has deteriorated also on account of the latter’s using insulting words in relation to I.R. and his aggressive behaviour towards the mother in the presence of the child.
The minor does not wish to be visited by his father, not even if his brother is also present, owing to the fact that his brother (C.I.) has attempted several times to persuade him that it is very nice to live with their father, because ‘at dad’s you don’t need to respect mummy’s rules: you don’t need to brush your teeth, you don’t need to learn, you don’t need to take piano lessons’; his brother also made him swear that when he reached the age of ten, he would move in with them.”
In a further report issued on 16 June 2003 the same psychologist noted the following:
“I have re-examined Th.N., seeing that new anxiety attacks, episodes of nocturnal enuresis and bruxism [teeth-gnashing] have appeared.
I have noted that these symptoms appeared following the child’s being visited by his father, who was accompanied by the brother (C.I.), and also by the bailiff and the father’s lawyer. The child has difficulties in relating the incident, as he fears ‘the gentleman who forces him to go to his dad’s’.
The symptoms presented are caused, on the one hand, by the fact that his relationship with his father has deteriorated and, on the other hand, by the brutality used in enforcing the [father’s] contact arrangements.
A pronounced state of anxiety on the child’s part when in the presence of his father, and an increasing change in their relationship are noted.”
On 25 March 2004 the Bucharest Court of Appeal dismissed I.R.’s appeal, holding that the visiting schedule she proposed would be unfair, considering that she herself was allowed to see the other child, C.I., for more than just a few hours per month. Besides, I.R. had not proven that the circumstances assessed by the courts in 2002, when the applicant’s contact rights had been established, had changed in any substantial way so as to warrant an alteration of those rights.
In a dissenting opinion, Judge M.R. stated that the contact arrangements vis-à-vis Th.N. needed to be changed, namely reduced. I.R. had produced sufficient evidence proving that Th.N. had been psychologically traumatised by the separation from his brother, and that he was convinced that this separation had been caused by his father, who also wanted to separate him from his mother; at the same time, in the process of enforcing his rights of contact with the bailiff’s aid, the father had threatened the child that he would take him with the help of the police if he did not voluntarily come with him; there was evidence in the file (testimonial and expert psychologist opinions) stating that Th.N. suffered from anxiety attacks, nightmares and nocturnal enuresis, on account of his fear of being separated from his mother, and owing to the perceived threat that he would be kidnapped. From that perspective, the judge considered that the child needed a more stable environment, and that he was developing well in the ambience created by his mother and his maternal grandparents.
2. Proceedings lodged in 2006
She submitted that on 20 December 2006 C.I. had left his father’s house and moved in with her, and implicitly with his brother Th.N. and with her new family (husband and their few months’ old twins).
I.R. alleged that as a consequence of her tense relationship with the applicant, as evidenced by the several criminal complaints he had lodged against her, it had become very difficult for her to maintain contact with C.I., which also impeded the two children’s possibility of spending time together. In the autumn of 2006 her elder son had told her that he wanted to move in with her, to live with her and with his younger brother. His wish was allegedly motivated by his strong and affectionate relationship with his brother, but also by the fact that he felt neglected and badly treated at home, following his father’s moving in with his new girlfriend and her own eleven- year-old son.
The applicant also filed counterclaims, asking to be granted custody of Th.N., mainly contending that I.R. would not be able to take care of all the four children she had, in view of the fact that she had many other responsibilities (I.R. being a doctor and a professor as well as a mother and a wife). Moreover, it was important for the children to be raised by their real father, and not a “surrogate father”, namely I.R.’s new husband.
The report reiterated the fact that the intense, litigious past of the parties had decisively aggravated and strained the relationship between the parents, on the one hand, and between them and the children, on the other hand. Such incidents had also contributed to the fact that the two brothers had not been able to see each other as often as they wanted.
The social worker also interviewed C.I., who had stated that:
“he decided in desperation to escape from his father’s home by taxi, as he felt neglected, isolated, offended; he was not allowed to speak to his mother and to his brother Th.N., he was not allowed to have friends over, he did not have a good relationship with his father’s girlfriend or with her son, who had been living with them for the past three years; moreover, he (C.I.) was eager to meet his twin brothers and to spend more time with his maternal grandparents, whom he had not seen for the past five years.”
The report noted that at the time of the social worker’s visit, C.I. seemed very happy to stay at his mother’s house, together with all of his brothers, whom he loved, and with his mother’s husband, who was very open and fond of children. He expressed in categorical terms his intention to stay with his mother. He declared that his father had come three times to see him at school and made him believe that he would not oppose his wish to stay with his mother.
In conclusion, the report recommended that I.R. should be granted resident parent status with respect to C.I., as not only was this the child’s firm wish, but also, in the new family, the child had been greeted with much love, making him feel included and protected.
“he lived with his mother and with her husband, whom he loved more than he loved his dad; his father came several times to take him;
- two or three years ago, he spent the weekend with his dad, and was not allowed to sleep with his brother C.I, but instead he slept with his dad; on the second day he was sick, and when he was taken to hospital by his mother, it became apparent that he had been intoxicated with nicotine; before that weekend, he had spent two other weekends with his dad, but nothing bad had happened to him;
- last year, on 6 December, he went to the police with his mum, to meet his dad; he said that he did not want to leave with his dad, even though the policeman insisted that he do so;
- many times, his father had talked badly about his mum, telling him to stop living with her;
- prior to his parents’ separation, he had witnessed his father strangling his mother.”
C.I., for his part, declared that:
“- when his parents separated, he had decided to leave with his dad, as he had told him that mum had stolen money, and that mum did not care for him and would mistreat him; he witnessed some violent scenes when his father had forced mum to tell him where the money was;
- his brother had felt sick following a visit to their dad’s, and then his father had shown him a printed paper, telling him that it was proof that mum had given drugs to his brother;
- at his dad’s, he had felt that he was a burden; his father was not interested in him, did not help him with his homework, never asked anything about how he was getting along at school nobody hugged him while he lived with his dad;
- mum took care of him, helped him with his homework, bought him clothes, hugged and kissed him;
-he felt that he could not complain about all these things to anybody; he only saw his mum at school, and his dad was telling him bad things about her; he was afraid to complain to anybody for fear that his father would hear about it and beat him;
- his father had beaten him when he took some of his [father’s] own food; from that moment on, he had followed all the rules, for fear that he would otherwise be beaten;
- before he had left for his mother’s house, he had warned his dad that he would leave if he continued to behave in such a way, and his dad had told him that if he left, he should never come back;
- following his moving in with his mum, his dad had visited him at school every week, promising that he would change, blaming stress at work for his behaviour;
- if possible, he would like to stop seeing his dad.”
Several witnesses were also heard, mainly stating that the two brothers were well taken care of by their mother and that they were both happy together.
In so doing, the court held that it was in the best interests of the minor to stay with the parent he felt closer to:
“Even assuming that the minor C.I. had only imagined a complete scenario of abuse and neglect from his father, the fact that he reproduced the same scenario to several people, as transpired from the evidence, proved the existence of a serious breakdown in communication between him and his father.”
Taking into account the child’s own choice, but also his best interests, on the basis of the file, the court held that C.I. should stay with his mother, while also allowing the applicant contact on an identical schedule to that set out with respect to Th.N. The court further held that concurrent efforts on the part of both parents were essential for the improvement of the father’s relationship with his two children.
In dismissing the applicant’s request to be granted custody of Th.N., the court held:
“The disputes between the parties regarding the enforcement of the judgment allowing the father contact are not a good enough reason to justify a change with respect to the custody of Th.N.; the father has at his disposal several procedural means aimed at addressing the non-enforcement of a judgment, but he must also find the appropriate means to allow him to grow closer to the child, while the mother’s duty is to explain to the child the importance of staying in touch with his father.”
E. Other judicial actions
45. On 16
March 2006 the applicant brought a civil action, seeking to have the
final judgment enforced by the imposition of a fine in the event
of
non-compliance.
46. On 26 September 2006 the court heard Th.N. in camera. Th.N. stated that he feared his father and that he did not wish to see him. He also declared that his father had never assaulted him.
47. In its final judgment of 28 September 2006, the Bucharest (First District) Court of First Instance allowed the applicant’s claims.
The court considered that the profoundly conflict-ridden relationship between the parties, proven also by the numerous criminal complaints they had lodged against each other, had had serious negative repercussions on both children, who had been used by the parents as weapons against each other and in that respect, both parents were at fault. However, Th.N.’s bad impression of his father and his constant fear of him had been caused, at least in part, by I.R., as the child lived with her and she had strong moral authority over the child. The court thus held that I.R. should pay the State a fine of ROL 20 (approximately EUR 0.75) per day, for every day that she failed to comply with the contested judgment.
On 20 February 2007 the Bucharest County Court dismissed an appeal lodged by I.R. as inadmissible.
II. RELEVANT DOMESTIC LAW
THE LAW
I. SCOPE OF THE APPLICATION
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicant
The applicant further argued that the domestic courts, both civil and criminal, had failed to assess promptly and without undue delay the numerous requests and complaints that had been lodged with them by both parents, thereby allowing considerable postponements in the proceedings. The attempts at enforcement, in which the applicant had been assisted by the bailiff, had proved to be ineffective. The management at Th.N.’s school had refused any dialogue with or support to the applicant concerning the improvement of his relationship with Th.N. Social services had not become involved in attempting to facilitate the enforcement of the judgment at issue.
At the same time, the authorities had failed to effectively take measures against I.R. for her repeated attempts to obstruct the exercise of the applicant’s rights of contact, as set out in the final judgment.
Contesting the Government’s arguments that I.R. had shown a true desire to facilitate contact between the applicant and Th.N., the applicant enumerated the mother’s alleged attempts to obstruct the enforcement of the judgment, including the proceedings she had initiated aimed at restricting his contact rights, her successive changes of residence and changes of the child’s schools, and the understanding she had reached with the school authorities that the applicant should be kept away from his son. He reiterated his belief that I.R. had negatively influenced Th.N., causing the child to have a bad impression of him, his father.
The applicant strongly disagreed with the Government’s contention that he had not been diligent enough in pursuing the enforcement proceedings. In this connection, he maintained that he could not be presumed to be able to interrupt all of his professional activities - in the hospital where he worked or at the university where he taught, and his participation in international conferences - so that he could make daily requests to the bailiff, as it was the latter’s legal duty to pursue the enforcement.
The applicant also contended that the manner in which his relationship with his other child, C.I., had evolved did not have any bearing on the State authorities’ duty to comply with their positive obligations under Article 8 of the Convention. In the past ten years he had seen his son Th.N. on three occasions only. The authorities had also failed in their obligation to provide guidance for the two parents in their relationship and to help them to cooperate for the children’s sake.
2. The Government
The impugned decision to separate the two brothers had been taken based on all the evidence available in the case, which had proved that Th.N. was more attached to his mother, while he feared his father. By requesting to be granted custody of C.I. alone, the applicant had in fact aggravated the separation between the two children, which in turn had had a negative effect on Th.N.’s impression of his father.
The applicant’s attempts to have the judgment granting him contact enforced had been fully supported by the bailiff, who had made continual efforts to that end. The bailiff’s reaction to each of the applicant’s requests for enforcement had been prompt. Moreover, the applicant had never contested before the courts the bailiff’s acts and/or alleged omissions.
After 23 January 2006 the applicant had not submitted any other request to the bailiff for the enforcement of the judgment in question.
At the same time, in his attempts to have contact with Th.N., the applicant had never requested any assistance from social services or from a psychologist, nor had he considered it useful or beneficial to take C.I. with him when visiting Th.N., even though he had been completely aware that the two children had a very affectionate relationship. The applicant’s attitude remained the same, in spite of the fact that the domestic courts, while always upholding his parental rights, had underlined that a delicate, patient and careful approach was needed in such cases, together with good cooperation between the parents.
The Government further argued that it had been solely the inappropriate behaviour of the applicant and his former wife that had caused the deterioration in his relationship with Th.N. Furthermore, as a result of the tactless manner in which the applicant had approached both his children, not only had his relationship with Th.N. not improved, but also even C.I., who at first had been more attached to him, had ended up leaving his house in order to live with his mother and younger brothers.
In this sensitive context, and having regard to Th.N.’s consistent attitude of rejection towards his father, the State authorities had complied with their positive obligations under Article 8, whilst recognising that sometimes, the best interests of the child might prevail over the interests of the parent.
The Government concluded by referring to the Court’s case-law, which underlined that where contact with the parent appeared to threaten the best interests of the child or interfere with those rights, it was for the national authorities to strike a fair balance between them (they cited Sylvester v. Austria, nos. 36812/97 and 40104/98, 24 April 2003; Hokkanen v. Finland, 23 September 1994, Series A no. 299 A; and Kallo v. Hungary, (dec.), no. 70558/01, 14 October 2003). That was what the national authorities had in fact accomplished in the present case, bearing in mind Th.N.’s constant refusal to meet his father.
B. The Court’s assessment
1. Relevant principles
2. Application of the above principles to the present case
The Court’s first task in the present case is therefore to consider whether, in the light of the relevant principles in its case-law, the measures taken by the Romanian authorities were as adequate and effective as could reasonably have been demanded in the circumstances of the case, for the facilitation of the reunion between the applicant and his child, Th.N., so as to comply with the provisions of the final judgment according him contact. Also, in determining whether the non-enforcement of the contact arrangements amounted to a lack of respect for the applicant’s family life, the court must examine whether a fair balance was struck between the various interests involved, namely the interests of the child Th.N. and his mother and brother, those of the applicant himself and the general interest in ensuring respect for the rule of law (see, also, D. v. Poland (dec.), no. 8215/02, 14 March 2006).
The Court notes in this context that even if the separation of the two brothers eventually proved to have had a negative effect on the smooth continuation of the relationships within the family, the conclusions of the domestic authorities seised with the custody issue had a sufficient evidentiary basis (including statements made by witnesses, psychological and other expert assessments, and the parties’ – the children’s and the parents’ – own wishes), for the assessment of whether the proceedings were in compliance with the requirements of Article 8 (see, by contrast, Mustafa and Armağan Akın v. Turkey, no. 4694/03, §§ 22-23, 6 April 2010).
In the assessment of the domestic authorities’ conduct in respect of the enforcement of the final judgment granting the applicant contact, the Court notes that the domestic courts allowed the applicant’s requests for enforcement without any undue delay; the request lodged on 24 May 2002 was allowed on 31 May 2002, for example.
The bailiff took immediate action to enforce the decisions, by issuing the first summons for 28 June 2002; he subsequently issued several further summonses (following each of the applicant’s requests) and accompanied the applicant to the child’s successive homes on each of the dates set for his visits.
Moreover, the applicant has never complained before the domestic courts of the bailiff’s acts and/or potential omissions.
In this respect, the Court does not discern any arbitrariness in the prosecutors’ and the courts’ decisions not to pursue I.R. criminally, while their reasoning pinpointing to the need of a more intense cooperation between both parents does not appear as devoid of merit (see, mutatis mutandis, Sbârnea v. Romania, no. 2040/06, § 119, 21 June 2011).
The Court considers that the conflict between the applicant and I.R. made it particularly difficult for the domestic authorities to act in order to fully enforce the applicant’s visiting rights. In this connection, the Court finds that the authorities diligently examined the applicant’s successive complaints against I.R. and that the imposed fines could not be considered unreasonably low, regard being had to the fact that larger fines might have threatened the well-being of the children (see D. v Poland, cited above, and Fuşcă v. Romania, no. 34630/07, § 48, 13 July 2010).
This reluctance was acknowledged by the applicant himself, who however, considered the mother to be solely responsible for the child’s behaviour. The Court, nevertheless, notes that the applicant’s continual assertions that the mother exerted a negative influence on the child Th.N. were taken into consideration by the courts, who however repeatedly held that it was the responsibility of both parents to improve the family relationship and therefore considered that both of them needed to cooperate and give more consideration to the best interests of their children (see paragraphs 11, 43 and 47 above).
Moreover, in 2007 the applicant himself indirectly acquiesced in the domestic court’s finding that it was in the best interests of both children to stay with their mother, thereby granting custody of both children to I.R., as he never contested this arrangement.
The Court appreciates the feelings of frustration aroused in the applicant by the unsatisfactory enforcement proceedings, despite his numerous efforts between 2002 and 2006. Notwithstanding, the nature of the obligation that fell to be executed was such that it required the applicant’s presence during the attempts at enforcement, regardless of how active or demanding his professional life he claims to have been. The bailiff, an individual unknown to the child, could not have been expected to go alone to the child’s home in order to take him away and deliver him to the applicant’s home (see Fuşcă v. Romania, cited above, § 46).
In this connection, the Court notes that the applicant did not request the assistance of social services or of a psychologist with a view to exploring other possibilities of approaching his estranged son (see, by contrast, Nistor, cited above, § 105).
However, re-establishing contact with a child in such delicate circumstances requires long-term efforts on the part of all concerned persons, including the applicant (see Sbârnea v. Romania, cited above, § 136), notwithstanding the public authorities’ positive obligations to ensure the enforcement of contact rights, thereby protecting the applicant’s right to respect for his family life. The Court reiterates in this connection that the obligation to take measures to facilitate contact is not absolute; moreover, it is an obligation of means, and not one of result.
In this context, the Court takes note of the applicant’s role in the impugned enforcement proceedings and, while reiterating that in such cases, active parental participation is required under Article 8 of the Convention, it considers that the applicant could have expected that in order to re-establish contact with his child, a long-term commitment and effort would be necessary, and this notwithstanding the mother’s own conduct, sanctioned as such by the domestic courts (see paragraphs 26, 47 and 65 above). It is also what the domestic courts have suggested and implied in their reasoning (see paragraphs 11, 29, 43, 47 above), the national authorities being in principle better placed to carry out such an assessment, in particular as they have direct knowledge of the context of each case and the parties concerned (see, mutatis mutandis, Gnahoré v. France, cited above, § 63).
While the behaviour of the parent cannot be regarded as an absolutely decisive factor since it does not relieve the authorities from the duty to implement such measures as will be apt to enable the family link to be maintained, the Court however finds that in the difficult circumstances of the present case, the domestic authorities did not fail to protect the applicant’s right to respect for his family life.
Accordingly, in the circumstances of the case there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 10 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Myjer and López Guerra is annexed to this judgment.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGE MYJER
I certainly agree with the finding of no violation of Article 8 of the Convention in this case. The Romanian authorities duly addressed the application lodged by the applicant to enforce the judgments specifying his visiting schedule with his child, and adopted all reasonable measures to achieve that goal, including imposing a fine on the child’s mother. It fell to the Romanian courts to determine the measures to be taken in the best interests of the child and the means of enforcing them, and there is no evidence that they did not perform that task adequately. In a delicate and sensitive matter such as this, it is difficult (and is certainly not this Court’s role) to imagine what other measures the Romanian courts might have taken without negatively affecting a child of such a young age.
I cannot agree, however, with the reasoning of the judgment, which goes beyond examining the conduct of the Romanian authorities and censures the behaviour of the parties to the conflict. In my view, such an appraisal is unwarranted (as it had already been carried out by the Romanian courts, which had direct knowledge of the facts and contact with the parties in the case) and is inevitably conjectural and speculative, given that this Court has had no such direct knowledge or contact. I particularly disagree with the content of the criticism of the applicant’s behaviour.
It is asserted in paragraph 67 of the judgment that the applicant should have been present during the attempts to enforce the courts’ decisions, accompanying the bailiff to the child’s mother’s home to pick him up, and in paragraph 68 that the father needed to take a “more sensitive approach”. The Chamber likewise reproaches the applicant for not having requested the assistance of social services or of a psychologist. It further indicates that long-term efforts were required from all persons concerned, “including the applicant” (see paragraph 69) and that he could have expected that a long-term commitment and much effort would be needed (ibid.).
In the circumstances of this case, I do not consider that it is the role of this Court to determine or censure the applicant’s conduct with respect to his child. In addition, I have serious doubts concerning the assertion in the judgment that the father should have been present when the child was taken from his mother’s home by the bailiff. Furthermore, I cannot endorse the criticism of the applicant for his lack of effort or sensitivity in a situation in which he has been allowed to see his son only three times in ten years, despite his many attempts to do so through legal proceedings brought in the Romanian courts.