CEDH · CASELAW;CLIN;ENG — 26 mai 2009

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Romania - 4023/04 Judgment 26.5.2009 [Section III] Article 8 Article 8-1 Respect for family life Breaking off of relations between child and father with full parental rights following grandparents’ refusal to return child after school holidays: violation   Article 41 National authorities required to take initiative and to coordinate with a view to gradually to rebuilding relationship between applicant and his daughter.   Facts : The applicant’s wife died in 1999. Their daughter, D., continued to live with her father. In January 2001 D. left with her father’s consent to spend her holidays with her maternal grandparents, who then informed the applicant in February 2001 that they did not intend to return D. to him. He filed a criminal complaint against the grandparents. He also lodged an urgent application with the District Court seeking the immediate return of his daughter. An order was made in his favour and was upheld by the County Court. A number of unsuccessful attempts were made to enforce the order. The applicant attempted to fetch D. himself but became embroiled in a quarrel with the grandparents as a result of which D. was injured and required treatment for 17 days. The applicant then brought an action against the grandparents before the District Court seeking his daughter’s return. The District Court upheld his action but the County Court rejected it on an appeal by the grandparents, finding that he could not offer his daughter the same material and psychological conditions as her grandparents, to whom the girl was very attached. His appeal was dismissed by the Court of Appeal, which found, moreover, that “for the time being” it was in the child’s interest to continue living with her grandparents, observing that other proceedings were pending between the parties concerning the custody of the child. The Supreme Court of Justice dismissed an appeal by the applicant to have the decision set aside. The grandparents’ action to obtain custody of the child was unsuccessful and the applicant was not deprived of his parental rights. He subsequently lodged a new urgent application to secure D.’s return but it was declared inadmissible. He was moreover ordered to pay maintenance contributions for his daughter. Law : The decisions and all the proceedings complained of in connection with the grandparents’ refusal to hand over the child had constituted an “interference” within the meaning of Article 8 § 2 of the Convention, since they had prevented the applicant from exercising his parental authority and right of custody in respect of his daughter. A provision from the Family Code had been applied in the present case with the aim of protecting D.’s interests. The impugned measure had thus pursued a legitimate aim for the purposes of the second paragraph of Article 8, namely the protection of the rights and freedoms of others. As to the necessity of the interference, the interest of children required that family ties could only be severed in “very exceptional” circumstances and everything had to be done to preserve personal relationships and, if and when appropriate, to “rebuild” the family. In that connection it was noteworthy that all the domestic courts had agreed that the applicant was able to offer D. normal living conditions and that his affection for the child was sincere. However, in refusing to order D.’s return to the applicant, the domestic courts had based their decisions on the material conditions offered by the applicant and on his conduct, on the potential difficulty for the child to integrate into her new family and on D.’s integration into the environment of her grandparents to whom she was deeply attached. However, the fact that a child could be placed in a more beneficial environment for his or her upbringing did not by itself justify removal from the care of the child’s biological parents. In the present case, the applicant, a civil servant, had permanent housing and normal material conditions, as the domestic courts had indeed observed. His educational and emotional abilities had not been called into question. As to the allegation that he had behaved aggressively, all the decisions had referred to a single incident which had not given rise to a criminal or specialised investigation to assess the applicant’s conduct. In rejecting the applicant’s request for the child’s return, the domestic courts had found decisive the argument that D. had been very attached to her grandparents in recent years. The courts had thus taken the view that it was in D.’s best interest to remain for the time being in an environment in which she had recently been living and was settled. Such an argument could be understood in view of a child’s capacity for adaptation and the fact that D. had been living with her grandparents from an early age. However, in the present case, the reasons given by the domestic courts to refuse D.’s return to her father did not correspond to the “very exceptional” circumstances that might be capable of justifying the severance of family ties. Whilst it could be accepted that a change in factual circumstances might exceptionally justify a decision concerning the care of a child, it had to be verified that the essential changes in question were not the result of action or inaction on the part of the State and that the competent authorities had made efforts to maintain the personal relationship and, where appropriate, to “rebuild” the family in due course. In cases concerning the return of children, the appropriateness of a measure had to be judged by the swiftness of its implementation. When difficulties arose, usually as a result of a refusal by the person with whom the child was living to enforce a decision ordering the child’s immediate return, it was for the competent authorities to take the appropriate measures to penalise this lack of cooperation and, whilst measures of coercion concerning children were not, in principle, desirable in this sensitive area, punitive action could not be ruled out in the event of manifestly unlawful conduct on the part of the person with whom the child was living. In the present case, the applicant’s attempts to oblige the grandparents to enforce the urgent-application order through a bailiff and further criminal proceedings had proven fruitless, mainly because of the inactive attitude of the competent authorities. In addition, the final decision in the criminal proceedings had been given two and a half years after the filing of the complaint by the applicant against the grandparents, who were refusing to enforce a final judicial decision. Furthermore, the child protection authorities had not managed to cooperate effectively. As a result, by failing to act swiftly, the domestic authorities, by their conduct, had favoured D’s integration into her new environment and, accordingly, had contributed decisively to the consolidation of a de facto situation that was contrary to the applicant’s right under Article 8 of the Convention. Moreover, if domestic courts temporarily refused to ensure the return of a child to a father whose parental rights had not been limited, it was nevertheless important to take measures to strike and ensure a fair balance between the interest of the child and that of a parent who was entitled to exercise his parental rights. The State’s obligations had not been confined to ensuring that the child was able to return to her father but extended all the preparatory measures that enabled such a result to be achieved. However, the domestic courts had completely failed to examine the possibility for the applicant to exercise his parental rights, of which he had not been deprived, in an effective manner. In this connection, it could only be deplored that, over such a long period of time, the authorities had shown absolutely no concern for the gradual weakening and even severance of the relationship between D. and her father, and more specifically for the lack of actual and effective contact between them. Thus, instead of ordering measures to sustain and improve, if appropriate, the relationship between the father and the child, the domestic courts had preferred to allow the passage of time to consolidate the situation, thus resulting, in view of the child’s age and attitude, in the risk of a growing and permanent alienation between them that could certainly not be regarded as being in the child’s best interest. The domestic courts had simply endorsed a situation created by the authorities’ lack of diligence in enforcing the decisions given upon the urgent-proceedings application. It was also particularly regrettable that, since the applicant had retained the exercise of his parental rights and D.’s residence had only been temporarily fixed with her grandparents, the child had clearly not benefited from any psychological support to maintain and improve her relations with her father and to prepare her to return to live with him. Such a measure would have furthered the convergence of the applicant’s interests with those of the child, instead of their interests being in conflict, which was the case. The Court took the view that the passiveness of the authorities was the cause of the severance in the relationship between the child and her father. Accordingly, it could not be claimed in the present case that the applicant’s right to respect for his family life had been effectively protected, notwithstanding his legitimate aspirations to reunite his family, as provided for by Article 8 of the Convention. Conclusion : violation (six votes to one). Article 41 – EUR 20,000 in respect of non-pecuniary damage.The Court considered that it was in the best interest of the child for the competent domestic authorities to take the initiative and coordinate their activity to bring about the gradual re-establishment of the father-child relationship between the applicant and his daughter.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes