[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DEAK v. ROMANIA AND THE UNITED KINGDOM - 19055/05 [2008] ECHR 476 (3 June 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/476.html Cite as: [2008] 2 FLR 994, [2008] ECHR 476, (2008) 47 EHRR 50, [2008] Fam Law 828

[New search] [Contents list] [Printable RTF version] [Help]

THIRD SECTION

CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM

(Application no. 19055/05)

JUDGMENT

STRASBOURG

3 June 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision

In the case of Deak v. Romania and the United Kingdom,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Nicolas Bratza,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 13 May 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

“Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child's habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child's best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative.

In this case the response that was received from Romania was sufficient to show that the child's removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase “rights of custody” has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child's removal, the father had no such rights.”

“...the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful... How then should the courts of the requested state respond to such a determination? Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice.”

“It was quite wrong to permit the father to adduce further expert evidence from Dr Mihai which challenged not only the conclusion but the statement of the content of the father's rights set out in the judgment of the Romanian court. The English court should have considered the terms of the judgment itself, without any subsequently obtained expert evidence. If it had done so it could only have come to the same conclusion as the Romanian court, even without applying any presumption in its favour.”

“This is an extraordinary case. It is, we are told, unique in the length of time which elapsed before the judge's order for the child's summary return to Romania (over three years after the commencement of Hague Convention proceedings); and unique too in being the only case in which a United Kingdom court has rejected a foreign court's article 15 determination that the child's removal was not in the event wrongful within the meaning of article 3...

In circumstances like these it seems to me almost inconceivable that the court requesting the article 15 determination would then not simply accept it. Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”. There is nothing of that sort here. On the contrary, the judge - neither Johnson J (who had requested the determination) nor Hogg J (who later ordered the child's return to Romania) - on 1 August 2005, acting merely on the father's request, ordered that an expert in Romanian law be jointly instructed by both parties to cover exactly the same ground as the Romanian Appeal Courts had themselves just covered...”

II.  RELEVANT NATIONAL AND INTERNATIONAL LAW

Article 43

1.  The divorced parent who was entrusted with the child shall exercise the parental rights...

3.  The divorced parent, who was not entrusted with the child, keeps the right to have personal ties with the child, as well as to observe his or her bringing up, education, studies and professional instruction.

Article 3

“The removal or the retention of a child is to be considered wrongful where –

a)  it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)  at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 5

“For the purposes of this Convention –

a)  'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

b)  'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

Article 7

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures -

a)  to discover the whereabouts of a child who has been wrongfully removed or retained;

b)  to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

c)  to secure the voluntary return of the child or to bring about an amicable resolution of the issues;

d)  to exchange, where desirable, information relating to the social background of the child;

e)  to provide information of a general character as to the law of their State in connection with the application of the Convention;

f)  to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

g)  where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

h)  to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

i)  to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Article 8

“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...”

Article 10

“The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.”

Article 11

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)  the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or

b)  there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”

Article 15

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

Article 21

“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”

THE LAW

Furthermore, according to the applicant, the United Kingdom also failed to assist him adequately in retaining contact with the child or to ensure the child's return to Romania. They were wrong in the first place to have issued a visa to the child without his consent and later in not sending him back to Romania after the expiry of his visa. The authorities obstructed the applicant's access to the United Kingdom by lengthy questioning before his entry into British territory. They also obstructed his contacts with the child by only allowing him to have meetings lasting a maximum of two hours in “locked rooms, under the supervision of one or two strangers”. On several occasions he was not allowed to take pictures of his son and was forced to speak English with him. His Article 8 rights were also infringed by the excessively long proceedings before the English courts. Article 8 reads as follows:

“1.  Everyone has the right to respect for his private and family life...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

I.  ADMISSIBILITY OF THE COMPLAINTS

A.  The complaint under Article 6 of the Convention concerning the alleged unfairness of the proceedings before the United Kingdom courts

B.  The complaint under Article 8 of the Convention

C.  The complaint under Article 5 of Protocol No. 7 to the Convention

D.  The complaints under Article 6 of the Convention concerning the length of the proceedings

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

B.  Costs and expenses

C.  Default interest

FOR THESE REASONS, THE COURT

2. Declares unanimously the other complaint under Article 6 and the complaint under Article 5 of Protocol N^o 7 inadmissible;

3. Declares by a majority the complaint under Article 8 of the Convention inadmissible;

(a)  that the Government of Romania is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 300 (three hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on the applicant, to be converted into Romanian lei at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 3 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Josep Casadevall
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting opinion of Mr B.M. Zupančič is annexed to this judgment.

JCM
SQ

PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I regret that I am unable to join the majority in this case as far as it concerns the inadmissibility of the complaint under Article 8 of the Convention.

The applicant complains that the Romanian authorities failed to take adequate steps to enforce the judgment which had given him the right to have access to his son for a total of 82 days per year. He also complains that the Romanian authorities allowed the mother to take the child out of the country and failed to assist him in the proceedings before the English courts.

My first hesitation in this case stemmed from my belief that it ought not to have been finally decided before it had become clear whether another case, which was being examined by the Third Section, would or would not be accepted for a referral to the Grand Chamber. I am referring to Maumousseau and Washington v. France, a case in which the pattern of events is to some extent a mirror image of the situation in this particular case. In Maumousseau and Washington the mother stayed in France and the father returned to the United States. Eventually, after a radical departure from the jurisprudence of the Cour de cassation, the child – who had never spent any meaningful time with the father – was snatched from the hands of the mother, put on an aeroplane and sent back to New York. The passage of time, which was the central issue in that case, made it unreasonable – according to the Hague Convention criteria – to have proceeded under those conditions to re-establish the relationship with the father in New York. The position I took in that case relied principally on the fait accompli logic, not uncommon in such cases, that is, the sheer passage of time in conjunction with the fact that the child in question was deprived to such a degree of her mother's maternal love and care. I continue to see the eventual snatching as an incredibly sad and shocking turn of events.

If Maumousseau and Washington is to be reconsidered by the Grand Chamber, which we do not know at this particular point in time, then certain very basic logic of the Hague Convention would have to be interpreted in the light of our own Article 8 and certain criteria guiding decisions in similar cases would be confirmed or newly established. In my opinion, it would be wise to wait and see whether such criteria is or is not forthcoming.

It is inconceivable, in my humble opinion, not to regard the pattern of events in this particular case through precisely the same lenses. At bottom, the situation is very simple, namely, the mother here effectively kidnapped the boy and, unbeknown to the father and the authorities, moved the child to a faraway country. In Maumousseau and Washington the omission of the mother was considered by the American courts to have been a kidnapping,

whereas here perfectly analogous behaviour, except that the mother actively kidnapped the boy, has not been considered as anything illegal. How can that be?

If the father in this particular case were to pursue the same legal internal and international remedies, then the mother's behaviour would end up in the same legal slot as the behaviour of the mother in Maumousseau and Washington. The father has not, however, pursued those or other legal remedies and therefore the actual kidnapping of the child has never fallen under that legal definition. The case has ended here in this Court, reduced to a series of technicalities concerning unreasonable delays allegedly committed by the Romanian and English courts.

On another level, an analysis of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction reveals that the removal of the child is to be considered wrongful if it is in breach of rights of custody, here of the father, under the law of the State in which the child was habitually resident immediately before the removal, and under the additional condition that those rights were actually exercised, here by both the father and mother. Technically, the application of the Hague Convention therefore depends on the application of Romanian law in the matter. A separate question therefore arises as to whether the idea of litigating this issue before the Romanian courts does not in fact conflict with the primordial imperative of the Hague Convention. This imperative, as we emphasized in our dissent in Maumousseau and Washington, is time. In other words, if the application of domestic law were to be litigated with unreasonable delay in each of these cases then the fait accompli logic referred to above would always produce an undesired effect. This is precisely what happened in Maumousseau and Washington, which is why it became unreasonable to snatch the child from the hands of the mother and put it on an aeroplane back to New York.

Nevertheless, there is one significant difference concerning the pattern of events in question. In Maumousseau and Washington the litigation was parallel in both countries but proved to be more effective in the United States than in France. In this particular case the litigation before the Romanian courts was completely ineffective, hence the unfortunate consequences which this Court has now confirmed. If the father in this case had pursued the same remedies as Mr Washington in his case, the mother's action would perhaps have been regarded as a kidnapping. However, the case got bogged down in the Romanian courts and the international action never materialised. If, on the other hand, the American courts in Duchess County in the State of New York had bothered to undertake a complex analysis of the French law, before the departure from precedent by the Cour de cassation, Mr Washington would never have succeeded with his case.

But these are technicalities. The role of the European Court of Human Right has certainly not been foreseen as one in which the unfortunate formula condemning legal formalism – summum jus, summa injuria! – would prevail. The subsidiary function of the international court is precisely to cut through such Gordian knots of legal technicalities and see the reality with a great dose of common sense and awareness of justice.

Here we have a father who has effectively been deprived of his child whereas in Maumousseau and Washington we had a child who had effectively been deprived of her mother. There is no disputing the fact that the clandestine removal of the child in this case was wrongful because there is now no getting round the fact that the distance between Bucharest and the United Kingdom, given the financial requirements involved, has deprived the father of his right to see his son for a total of 82 days per year. No amount of legal fireworks can conceal that simple fact, just as in Maumousseau and Washington nothing could conceal the fact that the child had been snatched from the hands of her mother who had cared for her all her life.

The legitimacy and moral impact of the judgments of this Court depend on this direct contact with reality. We should not be seduced into legal formalism.