Child custody and two different decisions of two different states! Involvement of the CJEU, ECtHR, Italy and Romania!

JUDGMENT

S.L. and A.L. v. Italy  04.06.2020 (no. 896/16)

see here  

SUMMARY

The case concerned child custody proceedings between parents of different nationalities (Italian and
Romanian).

In 2009 the first applicant’s wife brought divorce proceedings, seeking custody of her son, in the
Romanian courts, while judicial separation and custody proceedings, brought by the applicant in
2007, were still pending before the Italian courts. The Romanian court granted the divorce and
awarded custody to the mother in 2012, whilst the Italian court awarded custody to the father in
2013.

The applicants alleged that the Italian courts had not acted expeditiously as the proceedings had
taken six years and they complained of a breach of their right under Article 8 (right to respect for
private and family life) of the European Convention on Human Rights.

The Court took the view that the decision on child custody had been taken promptly, meeting the
requirements of the right to family life. It concluded that the Italian authorities had acted with due
expedition and had taken all the measures that could have been expected of them to ensure that
the applicants maintained a family relationship. It noted, among other things, that the procedural
activity of the first applicant and his wife had decisively affected the total length of the proceedings
and that the applicant had failed to use certain remedies.
The application was thus manifestly ill-founded.

PROVISION

Article 8

PRINCIPAL FACTS

The first applicant, S.L., is an Italian national who was born in 1972 and lives in Italy. He lodged the
present application in his own name and on behalf of his son A.L., an Italian national, who was born
in 2006 and lives in Romania with his mother.
In 2005 S.L. married a Romanian national and had a child with her. The couple lived in Italy. Then in
2006 S.L.’s wife and son moved to Bucharest, with his consent, intending to return to Italy for the
Christmas holidays. When the time came the wife decided to stay in Romania with her son.
In 2007 S.L. filed a request for judicial separation before the District Court in Teramo (Italy) and
sought custody of his son. His wife applied to join the proceedings. Provisionally the court awarded
custody to the mother, with an access right for the father. Then in January 2012 the court ordered
the separation and in July 2013 it awarded the father sole custody, ordering the child’s prompt
return to Italy.
Subsequently S.L. applied for recognition and enforcement of this judgment by the Romanian courts.
However, the Court of Appeal of L’Aquila (Italy), hearing the case on an application from his wife,
suspended the enforcement proceedings on noting that in the meantime she had obtained a divorce
and sole custody of the child in Romania, under a final decision of the Bucharest Court in December
2012. S.L.’s application for sole custody was thus declared inadmissible by the Italian Court of
Appeal.

In 2015 S.L. appealed on points of law, seeking a preliminary reference to the Court of Justice of the
European Union (CJEU) on the interpretation of the lis pendens concept in EU law within the
meaning of Article 19 of Council Regulation (EC) No 2201/2003 of 27 November 2003, and on the
effects of a breach of that provision for the procedure to secure recognition of the Romanian
judgment. The Court of Cassation referred the question to the CJEU.

In 2019 the CJEU ruled on the preliminary question, finding in particular that the rules of lis
pendens in Article 27 of Council Regulation (EC) No 44/2001 of 22 December 2000 must be
interpreted as meaning that “where, in a dispute in matrimonial matters, parental responsibility or
maintenance obligations, the court second seised, in breach of those rules, delivers a judgment
which becomes final, those articles preclude the courts of the Member State in which the court first
seised is situated from refusing to recognise that judgment solely for that reason. In particular, that
breach cannot, in itself, justify non-recognition of a judgment on the ground that it is manifestly
contrary to public policy in that Member State”. In the same year, following that judgment, the
Court of Cassation dismissed S.L.’s appeal.

THE DECISION OF THE COURT…

Article 8 (right to respect for private and family life)

For a parent and child, being together was a fundamental part of family life, and domestic measures
preventing this would interfere with the exercise of the right protected by Article 8 of the
Convention. In such cases States had to be exceptionally diligent in ensuring that a decision was
forthcoming within a reasonable time (a procedural requirement implicit in Article 8). Measures to
reunite the parent and child therefore had to be put in place quickly.

In the present case, the question was whether the applicants had sustained any interference with
their right to respect for family life in view of the time it had taken for the court in Teramo (Italy) to
rule on the child’s main residence and return to Italy, having regard to the fact that the mother had
in the meantime obtained custody of the child under a divorce decree delivered by the court in
Bucharest (Romania).

The Court noted that S.L. had not applied to the central authority for the return of his son to Italy
under the Hague Convention, but had merely brought proceedings for judicial separation before the
civil court, applying for sole custody of the child and his return to Italy.

The court in Teramo had provisionally ruled on the custody and placement of the child 4 months and
12 days after the appeal was lodged, in accordance with the procedural requirements under Article 8
of the Convention.

With regard to the abduction of the child, the Italian authorities had not been called upon to
examine this issue or to order his return, as the judicial separation procedure was not an effective
remedy for this purpose.

Furthermore, S.L. had not challenged before the Court of Appeal the decision to award custody and
residence rights to the mother, thus having to comply with the measures taken by the court.
The proceedings had then followed their course solely for the purpose of clarifying the manner in
which the father’s right of access was to be exercised. In that connection, the Court noted that,
while some of the adjournments could be attributed to the authorities, the procedural activity of S.L.
and his wife had decisively affected the overall length of the proceedings. The antagonistic nature of
the relationship between the parties had prevented them from reaching concrete and effective
agreements in the interest of their child. As a consequence of the difficulties encountered in the
enforcement of access rights, the Teramo court had taken measures in the interest of the child
alone.

The Court therefore found that the decision on custody had been taken promptly, in accordance
with the requirements of the right to respect for family life. It concluded that the Italian authorities
had acted with due expedition and had taken all the measures that could have been expected of
them to ensure that the applicants maintained a family relationship, in the interest of both father
and son.

The application was thus manifestly ill-founded (Article 35 §§ 3 (a) and 4 of the Convention).


ECHRCaseLaw

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