The return of the children to the father’s residence, which was their permanent place of residence, did not violate the mother’s right to family life

JUDGMENT

Voica v. Romania 07.07.2020 (no. 9256/19)

see here  

SUMMARY

Custody and residence of a child. Best interests of children.

The applicant moved with her children to Romania even though their place of residence and that of her ex-husband, with whom she shared custody, was France. The domestic courts ordered the return of the children to France with an irrevocable court decision. She filed a complaint with the ECtHR for violation of her right to family life.

The Court ruled that the decision to return the children to their place of residence was in accordance with the law, namely the Hague Convention and the French Civil Code.

The ECtHR also found that the decision of the domestic courts to return the children to France was based on facts, namely the strong social ties that the children maintained with France, and the fact that only their stay in France would ensure his right to contact father. He therefore considered that the intervention was necessary in a democratic society. No violation of the applicant mother’s right to respect for family life was found (Article 8 of the ECHR).

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Alexandra-Livia Voica, is a French and Romanian national born in 1982 who lives in
Bucharest.

The case concerned the applicant’s complaint about Romanian court decisions ordering her to
return her children to joint parental authority in France.

In September 2016 a French court granted the applicant and her former husband, X, joint parental
authority over their two children. It established the children’s residence as being with the applicant,
who at that time was living in France, while the former partner was granted contact rights.

In 2017 she moved to Romania with the children after receiving a job offer and X subsequently
began proceedings for the return of the children under the Hague Convention, lodging an action
with Bucharest County Court in March 2018, which upheld his request.

Among other things, it found that the children’s habitual residence had been in France and that theparents had had joint parental authority. Under French law, the children’s residence could only be
changed if both parents agreed or, in there was no such agreement, by a court authorisation.
The court also examined the French court decisions on parental authority in the case and considered
alleged abusive behaviour by X, but found that it did not constitute the exception of “grave risk”
preventing the children’s return in accordance with the Hague Convention. The County Court’s
decision was upheld on appeal in August 2018. The courts also dismissed objections by the applicant
to enforcement of the return decision.

In October 2019 the Paris Court of Appeal dismissed an appeal by the applicant against the original
custody decision of September 2016. It also established the children’s residence as being with their
father in France and granted the applicant contact rights only in that country. The parents were
required to obtain each other’s approval before taking the children abroad.

The applicant raised complaints about the Romanian court decisions in her case under various
Articles of the Convention. The Court dealt with them under Article 8 (right to respect for private
and family life) alone

THE DECISION OF THE COURT

The Court has held in particular that, in the area 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 those of the Convention on the Rights of the Child of 20 November 1989, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties .

Turning to the circumstances of the present case, the Court considers that the decision of 30 April 2018, whereby the County Court ordered the return of the applicants children to France, constituted interference with her right to respect for her family life. At that time the children were living with the applicant, who exercised parental authority, albeit jointly with X. The decision at issue was upheld by the Bucharest Court of Appeal on 9 August 2018 

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

The Court observes that the interference was provided for by law, namely by Articles 3 and 12 of the Hague Convention as ratified by the respondent State by means of Law no. 100/1992 . On this point, the Court also notes that as member States of the EU both States are bound by the Brussels II bis Regulation which is thus applicable in the present case

The Court notes that the County Court acted in what it considered to be the pursuit of the legitimate aim of protecting the rights and freedoms of the children, an aim that is consistent with the protection of the rights and freedoms of others as provided for by 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 the authorities gave appropriate weight to the childrens 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 County Court for its decision of 30 April 2018 

In the present case, in addition to the joint exercise of parental authority, the French courts granted X contact rights with the children as well as the right to be consulted in any matters concerning their welfare. The County Court examined in detail the case under the Hague Convention and found that the children were to be returned to France . The Court sees no need to depart in the present case from the findings reached by the County Court in its decision of 30 April 2018.

The fact that on 21 November 2017 the Paris Court of Appeal dismissed the request made by X for the return of the children does not alter this conclusion, in so far as those proceedings were not instituted under the provisions of the Hague Convention but concerned the attribution of custody within the meaning of the concept in French law, and the determination of the childrens residence. For this reason they fall outside the scope of the current examination.

Moreover, it is also clear from the applicants own behaviour that she had been aware when she took the decision to move to Romania with the children that she could not do so without the fathers consent or a court order. According to the applicant, she had informed X of her intentions and she sought the approval of the court that awarded custody. However, nothing in the file indicates that at the time when she changed the childrens residence to Romania either X or the court consented to that change.

There is thus no doubt in the present case that the childrens removal from France, which hindered the possible exercise by the father of the contact rights that he had been granted, was unlawful for the purpose of the Hague Convention.

The Court will now turn its attention to the second element of the applicants complaint, namely the manner in which the domestic courts examined the exceptions to return invoked by the applicant under Article 13 of the Hague Convention

Turning to the facts of the present case, the Court notes that the County Court examined the whole family context including the allegations of violence perpetrated by the father . The domestic court took into account the evidence presented by the applicant as well as the relevant court decisions rendered by the French courts and, based on that evidence, considered that the allegations made by the applicant were unsubstantiated. In addition, the court was prepared to seek international cooperation to ensure the childrens safety in France, in line with the principle of mutual trust between EU member States . Furthermore, the Court observes that the County Court examined the evolution of the children’s situation since their relocation to Romania and took into account the fact that they were integrated in their new environment . The Court is satisfied that the County Court identified the children’s best interests and considered them when deciding not to give significance for the purpose of the Hague Convention to the children’s integration in their new environment. In this respect, the Court cannot but note that throughout their stay in Romania, the children maintained contact with France and the French culture, which remained present even in their new environment. In particular, they continued their education in French  and, according to the applicant, visited France twice since their relocation to Romania: first with their father and then with the applicant . The Court also notes that the applicant’s stay in Romania was only intended to be temporary. For these reasons, the Court is prepared to accept that in addition to being integrated in their new environment in Romania, the children continued to remain linked to France; this fact would facilitate their return to their habitual environment in that country. The Court is thus satisfied that the County Court’s decision in this respect, albeit brief, convincingly established the children’s best interest in this respect.

Lastly, the Court notes that the applicant criticised the County Court for deciding on the childrens fate without interviewing them directly. In this connection the Court observes, however, that Article 13 § 2 of the Hague Convention only requires a judge to take into account a childs views if the said judge finds that the child has attained a sufficient degree of maturity. In any case, the Court has previously found that the domestic courts may be called upon to examine other aspects of the childs circumstances, in addition to the childs stated wishes, before exercising their discretion to refuse to order a return.

In the case at hand, the County Court gave reasons for its decision not to interview the children . Observing that the children were six and three years old at that time , the Court accepts the arguments put forward by the domestic court in this regard.

In sum, the Court does not find any indication of arbitrariness in the manner in which the County Court assessed the allegations of grave risk made by the applicant. Throughout its in-depth assessment of the circumstances brought before it, the court considered what was in the childrens best interests, which in cases such as the present one must be of primary consideration.

As to the impact which, in the applicants view, the County Courts decision had on the custody arrangements , the Court cannot but note that on 22 October 2019 the Paris Court of Appeal decided to place the children with their father not because of the Romanian courts ruling on the proceedings for return lodged under the Hague Convention, but as a consequence of the applicants own behaviour and her opposition to any contact between X and the children. There are thus no grounds to criticise the County Court or the Romanian authorities in general in this regard.

In the light of the above findings, the Court concludes that the interpretation and application by the domestic courts of the provisions of the Hague Convention and of the Brussels II bis Regulation were sufficient to secure the guarantees of Article 8 of the Convention, and that the interference with the applicants right to respect for her family life was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

There has accordingly been no violation of Article 8 of the Convention.

 


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