Father’s consent to the residence of a minor abroad. The Strasbourg solution.
JUDGMENT
Dimova and Peeva v. Bulgaria (application no. 20440/11) 19.01.2017
SUMMARY
Permit to leave the country to a minor child. The refusal of the national courts to grant without the consent of the father and without a time limit permission to the minor daughter to stay with her mother abroad does not constitute a violation of the family life of her child and her mother. The case concerned the refusal of the Bulgarian courts to allow a child to travel abroad with his mother without the consent of his father. The mother asked the permission of the authorities to take her daughter abroad with her, where she was going to marry her new partner and live with her child, but met the refusal of the judicial authority to decide that this would not be in the child’s best interest.
USE
No granting permission for unlimited time to install a minor abroad if the father does not consent , does not constitute violation of the family life.
PROVISION
Article 8
PRINCIPAL FACTS
The case concerned the Bulgarian courts’ refusal to allow a child to travel abroad with her mother without her (the child’s) father’s consent. The applicants, Tsveta Dimitrova Dimova and her daughter Emma Lachezarova Peeva, are Bulgarian nationals who were born in 1980 and 2005 respectively and currently live in the UK.
Ms Dimova divorced Ms Peeva’s father in 2008. According to the divorce agreement, the child was to live with her mother, and her father would have certain contact rights. In March 2009, Ms Dimova sought authorisation from the Varna District Court for her daughter to leave the country with her without the father’s agreement. Ms Dimova submitted that she was in a committed relationship with a Bulgarian man living in the United Kingdom, that they intended to marry, and that she wished to live with him and her daughter in the UK. The court rejected Ms Dimova’s claim in October 2009, finding that this would not be in the child’s best interests. Specifically, the court noted that the mother could not show that she had a fixed residence abroad or a secure income with which to ensure her daughter’s well-being. In addition, the child’s absence from Bulgaria would interfere with her father’s exercise of his contact rights. Ms Dimova appealed this decision to the Varna Regional Court. The court allowed her appeal in February 2010, holding that, in view of the strained relationship between the parents, permission for the child to travel abroad with only her mother should be granted until she reached majority.
The Supreme Court of Cassation upheld a cassation appeal by the father and in a final judgment of 1 November 2010 refused to allow the child to travel abroad without her father’s agreement. The
court held that permission to travel abroad with just one parent could only be granted in respect of fixed destinations and for a limited period of time, and uniquely when this was in the child’s best interests. The Supreme Court of Cassation noted that Ms Dimova had not presented any guarantees as to where the child would be taken or how the father’s contact rights would be exercised. Importantly, she had not sought in court to have the contact regime between child and father changed with a view to her and the child settling in the UK.
On 18 December 2011, Ms Dimova and her partner, who was still living in the UK, married in Bulgaria. Several days earlier, the child’s father had explicitly agreed to her leaving the country with
her mother. He signed an initial declaration authorising a six-month period, and has apparently been signing such declarations authorising year-long periods ever since. As a result, Ms Dimova and her daughter have been able to travel to, live, and study in the UK. Since leaving Bulgaria in January 2012, the child has been in regular contact with her father via phone and Skype, and has spent time with him every summer.
DECISION OF THE COURT
Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, the applicants complained that the Bulgarian courts’ refusal to allow the child unrestricted travel abroad with her mother without her father’s consent had breached both her and her mother’s right to private and family life.
No violation of Article 8 esteroides orales
