The Court decides not to return the children to their father because of domestic violence. Complete contradiction with the rationale of national courts.

JUDMENT 

O.C.I. and others v. Romania 21.05.2019 (no. 49450/17)

see here

SUMMARY 

Domestic violence. Abuse of children by their father in the past. The mother took the children to her home country of Romania and did not return to Italy, which was the permanent home of the family and where their Italian father lived. The children’s father appealed before the Romanian Courts asking him to return the children to his care in Italy. The national courts, although acknowledging that he was abusing the children,  decided that they shouyld return to Italy, believing that acts of violence were casual and would not reappear to constitute a “serious danger”. They also felt that the Italian authorities would be able to protect the children. The Court found that the Romanian courts did not pay enough attention to the serious risk of domestic violence that the children would be subjected to. Even if there was mutual trust between Romania and the Italian child protection authorities within the EU, this did not mean that Romania was obliged to send the children back to an environment where they were in danger, leaving Italy to face any abuse in case the children were once again abused. Infringement of Article 8 (right to respect for private and family life) of the ECHR

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicants are Ms O.C.I. and her children, P.A.R. and N.A.R., who were born in 1978, 2008, and
2010. They are all Romanian nationals. The children also hold Italian nationality.

After spending the summer holidays in Romania in 2015, Ms O.C.I. decided not to go back to her
husband in Italy with their children.

The children’s father, an Italian national, brought proceedings for the return of the children to Italy,
their habitual place of residence, under the Hague Convention on the Civil Aspects of International
Child Abduction. Ms O.C.I. opposed the action, alleging that her husband was violent towards his
children. He beat them if they disobeyed and humiliated them by calling them names. She submitted
several video-recordings of such violent episodes. The abuse had worsened in recent years and she
had felt obliged to seek refuge in Romania.

In 2016 the Romanian courts allowed the father’s application for the return of the children, a
decision upheld in 2017. The courts found that the children had been subjected to physical force by
their father, but that there had only been occasional acts of violence which would not reoccur “often
enough to pose a grave risk”. They also found that, in any case, the Italian authorities would be able
to protect the children if the risk of abuse was brought to their attention.

The authorities have not so far, however, been able to enforce the return order because the children
have refused to go back to Italy. The applicants are all still apparently living in Romania.

THE DECISION OF THE COURT 

The Court reiterated that corporal punishment could not be tolerated and States should strive to
prohibit it in law and practice.

The law in Romania laid down an absolute prohibition on domestic corporal punishment. However,
the court statements in the applicants’ case, namely that the violence had only been occasional and
would not reoccur “often enough to pose a grave risk”, ran counter to that prohibition.
Indeed, even though the domestic courts had found that the children had been abused by their
father, as substantiated with video-recordings, they had not weighed up that information in
considering the children’s best interests.

Moreover, the courts had not considered whether the children were no longer at risk of being
violently disciplined by their father if returned to his care, leaving it up to the Italian authorities to
react and protect the children if abuse reoccurred.

On that point, the Court noted that any mutual trust between Romania and Italy’s child-protection
authorities under EU law (the Brussels II bis Regulation) did not mean that the State to which the
children had been wrongfully removed was obliged to send them back to an environment where
they ran a grave risk of domestic violence solely because it was their habitual place of residence and
the authorities there were capable of dealing with any abuse.

The domestic courts should have given more consideration to the risk of the children being illtreated if returned to Italy. The Court concluded that the domestic courts had failed to examine the allegations of “grave risk” in a manner consistent with the children’s best interests. There had therefore been a violation of Article 8 of the Convention.

Lastly, the Court held that the applicants’ allegations of inhuman and degrading treatment had
already been examined under Article 8 and so no separate issues arose under Article 3.

Just satisfaction (Article 41)

The Court held that Romania was to pay, jointly, to the applicants 12,500 euros (EUR) in respect of
non-pecuniary damage and EUR 3,645 to Ms O.C.I. in respect of costs and expenses(echrcaselaw.com editing).


ECHRCaseLaw

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