Abduction of a child by her mother. Non-implementation of the Hague Convention by national courts. Violation of the father’s right to family life

JUDGMENT

Michnea v. Romania 07.07.2020 (no.  10395/19)

see here 

SUMMARY

Hague Convention, Brussels Regulation, child custody and best interests of the child.

The applicant, a Romanian national, lives in Italy where he and his Romanian wife had a daughter. Without his consent, the wife moved with her child to Romania. The domestic courts rejected the applicant’s request for the child’s return to Italy on the grounds that their main residence was Romania. In the meantime, the divorce was granted and the parental responsibility was assigned exclusively to the mother. The applicant complained that the removal of his daughter violated his right to family life.

The Court pointed out that in the field of international child abduction, the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention and the Convention on the Rights of the Child, as their interests are paramount.

In the present case, the Court found that the decision of the Court of Appeal, which accepted Romania as the child’s usual residence, was incorrect after the child had been born and registered in the municipal register of Italy. The ECtHR therefore ruled that the Hague Convention had not been implemented, the Court of Appeal’s decision did not guarantee the best interests of the child and the interference with the applicant’s right to respect for family life was not “necessary in a democratic society”.

The ECtHR found a violation of the applicant’s right to respect for family life (Article 8 of the ECHR) and awarded an amount of EUR 7,500 for non-pecuniary damage.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Gheorghe Michnea, is a Romanian national who was born in 1974 and lives in Bresso,
Italy.

The case concerned his complaint about Romanian courts in a child custody dispute.

The applicant married another Romanian national, X, in 2016, who moved to be with him in Italy,
where he had lived and worked since 2006. They had a daughter, Y, in March 2017. They all lived together in Italy, with the parents exercising joint authority over Y from birth. In August 2017 X took the child to Romania without the applicant’s consent.

In February 2018 the applicant lodged an action with Bucharest County Court under the provisions
of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the
Hague Convention”), seeking the return of the child to Italy.

In April 2018 the County Court allowed the request, but in June of the same year the Bucharest
Court of Appeal quashed the decision and found that the child should stay in Romania, which was
where she was habitually resident. Among other things, it found that the lawful residence of the
applicant and his wife was still in Romania and that their flat in Italy had been rented temporarily.
In May 2018 a court granted the couple a divorce, giving the mother sole parental responsibility.
The applicant complained under Article 8 (right to respect for private and family life) about the
refusal of the Romanian courts to order the return of his child to Italy.

THE DECISION OF THE COURT

The Court held in particular that in the field of international child abduction, the obligations imposed by Article 8 on States Parties must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child of 20 November 1989, and rules and principles of international law.

In all decisions concerning children, their best interests must be taken into account.

Initially, the ECtHR considered that the decision of the Bucharest Court of Appeal of 14 June 2018, which refused to return the applicant’s child to Italy, constituted an interference with the applicant ‘s right to respect for his family life. At that time the plaintiff and X. were married and thus exercised joint custody of their child. The Court reiterated that it found that the requirements of the Hague Convention also apply to married couples who jointly care for their children without requiring a court decision in this regard. The Court has no reason to suspect that custody was effectively exercised jointly by both parents prior to the removal.

It remains to be seen whether the intervention was “in accordance with the law”, pursued one or more legitimate aims and “was necessary in a democratic society”.

The Court initially observed that the intervention was provided for by law. Second, the Court noted that the Bucharest Court of Appeal had acted in accordance with its own right to pursue the legitimate aim of protecting the rights and freedoms of the child, which is consistent with the protection of the rights and freedoms of others, as provided for in Article 8 § 2 of the Convention.

Lastly, the Court must determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking a balance between the competing interests at stake, appropriate weight was given to the childs best interests, within the margin of appreciation afforded to the State in such matters. In order to do so, the Court will have regard to the reasoning advanced by the Court of Appeal for its decision. 

The Court considered whether the above interpretation and application of the provisions of the Hague Convention and the Brussels Regulation by the Court of Appeal ensured the applicant’s rights as guaranteed by Article 8 of the Convention. The court noted that the applicant’s daughter was born in March 2017 in Italy, where she had lived all her life before moving to Romania in August 2017. She was registered in Italy at birth and benefited from Italian health insurance. Prior to August 2017, the applicant, X. and Y. lived together in Italy as a family, a fact which was recognized by the Court of Appeal in its decision. It can therefore be concluded that Italy was the only residence the child knew at that time. The Court referred to the principles of the Brussels Rules as interpreted by the case law of the WEU and noted that, before her removal from Italy, the child was, at least to some extent, integrated into a social and family environment in that country. The decision of the Court of Appeal does not explain why this court gave priority to what appears to be the Romanian residence of the parents even though the family lived in Italy at the time of the child’s birth and until his removal and had made all the arrangements at birth. to enroll the child in Italy and take advantage of the Italian welfare system.

For those reasons, and notwithstanding the principle of subsidiarity, the Court must conclude that the domestic courts refusal to acknowledge Italy as the country of Ys habitual residence does not sit well with the facts  of the present case or with the purpose of the Hague Convention which is primarily to safeguard the childrens best interests by restoring the status quo and ensuring their immediate return to their country of habitual residence in the event of unlawful abduction. The domestic court did not attach any weight to the fact that Y had been removed from Italy without the applicants consent, which breached his rights protected by law and interfered with their normal exercise. Therefore, it appears that the provisions of the applicable law were in the present case interpreted and applied in such a way as to render meaningless the applicants lack of consent for Ys departure to Romania and subsequent stay there.

The above factual elements, notably the finding that the habitual residence had been in Italy and the existence of shared custody  would normally have been sufficient to reach the conclusion that the Hague Convention was applicable and that Ys removal from Italy without the applicants consent had been wrongful in terms of that Convention. This would then have triggered the duty to return Y to Italy, under Article 12 of the Hague Convention unless one of the exceptions provided for by Article 13 of that Convention was met. No such assessment was made by the Court of Appeal, insofar as the Hague Convention was found not to be applicable in the case. Equally important, the Court finds no indication in the Court of Appeals decision that that court identified the best interests of the child and appropriately took them into account in making its assessment of the family situation, as required by Article 8 of the Convention. It must be observed, however, that the only court which examined the family situation in the light of the Hague Convention, the County Court, considered that there was no reason to oppose the return of the child to Italy.

Having regard to the circumstances of the case seen as a whole, the Court concludes that the interpretation and application of the provisions of the Hague Convention and of the Brussels II bis Regulation by the Court of Appeal failed to secure the guarantees of Article 8 of the Convention and that the interference with the applicants right to respect for his family life had not been “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

There has accordingly been a violation of Article 8 of the Convention.

Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 4,225 (costs and expenses)


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